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United States District Court, Second Circuit
May 3, 2013
UNITED STATES OF AMERICA, Plaintiff,v.PRAVIN V. MEHTA, Defendant.
KENNETH SCHROEDER, Jr., Magistrate Judge.
This case was referred to the undersigned by the Hon. William M. Skretny, in accordance with 28 U.S.C. § 636(b)(1), for all pretrial matters and to hear and report upon dispositive motions. Dkt. #17.
The defendant, Pravin V. Mehta ("Mehta"), is charged in a twenty-eight count Indictment (Dkt. #16) with the distribution and dispensing of various controlled substances and the conspiracy to do so. Defendant Mehta also faces a forfeiture count. What follows is this Court's Decision and Order with respect to Mehta's non-dispositive motions directed to the Indictment. Dkt. #41. This Court's Report, Recommendation and Order with respect to defendant Mehta's dispositive motions will be filed separately.
On January 27, 2011, defendant Mehta was arrested and charged in a Criminal Complaint with the knowing, intentional and unlawful distribution of schedule II, III and IV controlled substances by the issuance of prescriptions in a manner inconsistent with the usual course of medical practice and for other than a legitimate medical purpose for the period March 2010 through September 2010. Dkt. #1. As detailed in the Affidavit of United States Department of Justice, Drug Enforcement Administration, Buffalo Resident Office ("DEA-BRO") Diversion Investigator Joseph Cowell submitted in support of the Criminal Complaint, the DEA-BRO initiated and coordinated a multi-agency joint investigation into Mehta and his medical practice. Dkt. #1, § 7. The DEA-BRO had received complaints of excessive and unlawful prescribing of controlled substances by Mehta from area law enforcement agencies, including the New York State Police, Niagara County Sheriff Department-Drug Task Force, Niagara Falls Police Department, and the New York State Bureau of Narcotic Enforcement. Id. at § 8. In his Affidavit, Diversion Investigator Cowell further stated:
Historically, the BRO has received similar source and intelligence information concerning MEHTA's over-prescribing of controlled substance "painkillers" from medical professionals, pharmacists, and private individuals within Niagara and Erie Counties. Confidential sources and cooperating defendants have named MEHTA as a source of controlled substances where by [sic] a person can get any drug they want prescribed with little or no medical examinations, and that MEHTA is referred [sic] as "Dr. Feel Good."
Id. Thereafter, Investigator Cowell's Affidavit detailed the over year long investigation which included the review of data, consensually recorded office visits and the analysis of a medical expert retained to provide an opinion concerning whether the prescription of controlled substances by Mehta during the consensually recorded office visits was consistent with the usual course of medical practice and whether the prescribing was for a legitimate medical purpose.
On or about August 31, 2011, a Federal Grand Jury returned the instant twenty-eight count Indictment (Dkt. #16). On September 6, 2012, defendant Mehta filed the instant motion seeking the following: the exclusion of statements by non-testifying co-conspirators, a bill of particulars, the revelation of the identity of informants, discovery pursuant to Rules 12 and 16 of the Federal Rules of Criminal Procedure, release of Brady materials, the disclosure of evidence pursuant to Rules 404(b), 608 and 609 of the Federal Rules of Evidence, the disclosure of witness statements, the preservation of rough notes, the disclosure of Grand Jury transcripts, motion to voir dire government experts outside of the presence of the jury, and an audibility hearing. Dkt. #41. The government filed a response to defendant Mehta's motion (Dkt. #45) on October 3, 2012, and thereafter, filed an Amended Response (Dkt. #53) (all referenced herein will be to the Amended Response) on November 15, 2012. This Court heard oral argument on January 8, 2013. Dkt. #62.
Exclusion of Statements of Non-Testifying Co-Conspirators
Pursuant to Bruton v. United States, 391 U.S. 123 (1968) and the Sixth Amendment to the United States Constitution, the defendant requests that the Court preclude the admission into evidence of all post-arrest statements by non-testifying co-conspirators/co-defendants which may implicate the defendant in any way. Dkt. #41, pp.7-8. In support of this request, the defendant claims that, "because he has not received discovery of any post-arrest statements by co-conspirators or co-defendants, Dr. Mehta cannot know whether the government will seek to use such evidence against him, or even if such statements exist." Id. at p.8.
In its response, the government states,
While the government has obtained statements from a number of co-conspirators pursuant to cooperation agreements, the government would not seek admission of those statements without having the witness testify at trial.
Dkt. #53, p.10.
Because Rule 801(d)(2)(E) of the Federal Rules of Evidence does not contain a required pretrial notice, there is no requirement on the part of the government to make any such disclosure of this type of evidence at this time. As a result, defendant's request in this regard is denied. Any request to exclude such statements at the trial, is a matter left to the discretion of the trial judge.
Bill of Particulars
In ninety-four separately lettered requests, the defendant seeks information concerning the charges in the Indictment. Dkt. #41, pp.9-23. In support of his requests, defendant Mehta states, "[w]ithout such specification as to the nature of his allegedly improper conduct, Dr. Mehta is without ability to prepare for trial and the danger of surprise at trial is greatly increased." Id. at p.9. In its response, the government states,
[e]ssentially, the defendant requests the exact time, date and manner in which the defendant committed the crimes alleged in each Count of the Indictment, the name of all co-conspirators, and specification as to how the government will prove each allegation in the Indictment. In addition, the defendant seeks the names of any and all witnesses to those acts as well as the statements those witnesses may have given.
The Indictment in this case is very detailed and the defendant has been provided with significant discovery materials. Thus, the government refuses the requests for further particularization...
Dkt. #53, pp.10-11.
In addition, the government states,
In the instant case, counsel fails to articulate any facts upon which the Court could conclude that the defendant had met his burden of establishing need, especially in light of the detailed indictment, information contained in the search warrant application and Criminal Complaint, and the voluntary discovery provided to date. Here, the documents provided by the government not only illustrates [sic] the words and actions of the defendant and others acting at his direction, but also provides [sic] the dates relevant to each of these acts. Moreover, each substantive count of the Indictment specifies [sic] narrow time period or specific date on which the criminal acts occurred and the controlled substance in issue.
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. Many of the defendant's requests ask for details as to "how" the defendant committed a certain act (e.g. "State how it is claimed that the controlled substances were dispensed and distributed to any individual - request zzz["]). Such detailed disclosure of the government's evidence is not the function of a bill of particulars. Accordingly, for all of the foregoing reasons, defendant's requests for a bill of particulars should be denied.
Dkt. #53, pp.16-17.
It has become axiomatic that the function of a bill of particulars is to apprise a defendant of the essential facts of the crime for which he has been charged. United States v. Salazar, 485 F.2d 1272, 1277-78 (2d Cir. 1973); cert. denied, 415 U.S. 985 (1974); Wong Tai v. United States, 273 U.S. 77 (1927). The charges in the Indictment, along with the discovery materials provided by the government, clearly inform the defendant of the essential facts of the crimes charged. As a result, the defendant is not entitled to, nor is he in need of, the "particulars" being sought for that purpose, and his request is therefore denied.
A bill of particulars should be required only where the charges of the indictment are so general that they do not advise the defendant of the specific acts of which he is accused." United States v. Feola, 651 F.Supp. 1068, 1132 (S.D.N.Y. 1987), aff'd, 875 F.2d 857 (2d Cir.) (mem.), cert. denied, 493 U.S. 834 , 110 S.Ct. 110, 107 L.Ed.2d 72 (1989); see also United States v. Leonelli, 428 F.Supp. 880, 882 (S.D.N.Y. 1977). "Whether to grant a bill of particulars rests within the sound discretion of the district court." United States v. Panza, 750 F.2d 1141, 1148 (2d Cir. 1984) (citing United States v. Burgin, 621 F.2d 1352, 1358-59 (5th Cir.), cert. denied, 449 U.S. 1015 , 101 S.Ct. 574, 66 L.Ed.2d 474 (1980)); see also [United States v.] Bortnovsky, 820 F.2d [572] at 574 [(2d Cir. 1987)]. "Acquisition of evidentiary detail is not the function of the bill of particulars." Hemphill v. United States, 392 F.2d 45, 49 (8th Cir.), cert. denied, 393 U.S. 877 , 89 S.Ct. 176, 21 L.Ed.2d 149 (1968).
United States v. Torres, 901 F.2d 205, 234 (2d Cir. 1990); see also United States v. Chen, 378 F.3d 151, 163 (2d Cir.), cert. denied, 543 U.S. 994 (2004); United States v. Porter, No. 06-1957, 2007 WL 4103679 (2d Cir. Nov. 19, 2007), cert. denied, 128 S.Ct. 1690 (2008).
Disclosure of Informant Information
The defendant requests the disclosure of the identity of all informants possessing information which may be material to defendant's alleged guilt or innocence, the identity of all informants who were present at any of the events described in the Indictment and all government reports containing any information received from an informant. Dkt. #41, pp.24-31. In its response, the government states that such disclosure is unwarranted at this time. Dkt. #53, pp.17-19. In its response the government acknowledges the existence of confidential, cooperating individuals in this case insofar as the Criminal Complaint referenced the use of confidential sources. Moreover, the government states that it has made available the recordings of the office visits and medical files involving the confidential sources and undercover officers. According to the government, disclosure of the identity of these sources/witnesses at this time is not warranted.
In order to be entitled to the requested information, the defendant must sufficiently state a basis for requiring the disclosure of this information or that the testimony of the informant would be of even marginal value to the defendant's case. Moreover, the Court notes that the holding of the Court of Appeals for the Second Circuit in United States v. Saa, 859 F.2d 1067 (2d Cir. 1988), cert. denied, 489 U.S. 1089 (1989), is instructive:
The leading Supreme Court case on this question, Roviaro v. United States, 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957), holds that
[w]here the disclosure of an informant's identity, or of the contents of his communication, is relevant and helpful to the defense of an accused, or is essential to the fair determination of a cause, the [informant's] privilege must give way.
353 U.S. at 60-61 , 77 S.Ct. at 628. The Court explained that "no fixed rule with respect to disclosure is justifiable." Id. at 62, 77 S.Ct. at 628. What is required is "balancing the public interest in protecting the flow of information against the individual's right to prepare his defense." Id. Whether non-disclosure is erroneous "must depend on the particular circumstances of each case, taking into consideration the crime charged, the possible defenses, the possible significance of the informer's testimony, and other relevant factors." Id. See Rugendorf v. United States, 376 U.S. 528, 534-35, 84 S.Ct. 825, 829, 11 L.Ed.2d 887 (1964); United States v. Lilla, 699 F.2d 99, 105 (2d Cir. 1983); United States v. Ortega, 471 F.2d 1350, 1359 (2d Cir. 1972), cert. denied, 411 U.S. 948 , 93 S.Ct. 1924, 36 L.Ed.2d 409 (1973).
The defendant is generally able to establish a right to disclosure "where the informant is a key witness or participant in the crime charged, someone whose testimony would be significant in determining guilt or innocence." United States v. Russotti, 746 F.2d 945, 950 (2d Cir. 1984); United States v. Roberts, 388 F.2d 646, 648-49 (2d Cir. 1968); see United States v. Price, 783 F.2d 1132 (4th Cir. 1986); United States v. Barnes, 486 F.2d 776 (8th Cir. 1973). In Roberts, the informant introduced an undercover agent to the defendant and was present when the defendant and the agent negotiated and transacted two sales of heroin. The Court, noting that the informant was "present during all the significant events, " 388 F.2d at 649, found that he was "obviously a crucial witness to the alleged narcotics transactions, " id., and therefore, his whereabouts should have been revealed to the defense if properly requested. But disclosure of the identity or address of a confidential informant is not required unless the informant's testimony is shown to be material to the defense. See United States v. Valenzuela-Bernal, 458 U.S. 858, 870-81, 102 S.Ct. 3440, 3448, 73 L.Ed.2d 1193 (1982) (dictum); United States v. Lilla, 699 F.2d at 105. As this Court's recent opinion in United States v. Jiminez, 789 F.2d 167 (2d Cir. 1986) makes clear, it is not sufficient to show that the informant was a participant in and witness to the crime charged. In Jiminez, the informant was both participant and witness, but the district court's refusal to order disclosure of his identity was upheld on the ground that the defendant had failed to show that the testimony of the informant "would have been of even marginal value to the defendant's case. 789 F.2d at 170."
Id. at 1073; see also United States v. Fields, 113 F.3d 313, 324 (2d Cir.), cert. denied, 522 U.S. 976 (1997).
In support of his request, the defendant argues that he is entitled to the location and present whereabouts of any and all informants so that an investigation may be made into the credibility and background of the informants prior to trial. Dkt. #41, p.27. In addition to the revelation of the identity, location and present whereabouts of each informant, the defendant further asserts that he is entitled to pretrial access to the prosecution witnesses. Id. at pp.28-31. As a threshold matter, defendant Mehta recognizes that the general rule is that in non-capital cases the accused has no constitutional right to require the production of the names and addresses of prospective witnesses. However, the defendant maintains that this rule is "suffering from increasing erosion." Id. at p.28. Lastly, the defendant offers the standard, boilerplate reasoning offered in nearly every case in support of his request, i.e., "[t]he inherent unreliability of the testimony of an accomplice or government informant underscores the need for complete disclosure of information relating to credibility." Dkt. #41, p.31. Without more, the Court finds that the defendant has failed to sufficiently state a basis for requiring the disclosure of this information or that the testimony of the informant would be of even marginal value to the defendant's case. Accordingly, defendant's request is denied without prejudice.
As a threshold matter, the defendant acknowledges that the government has provided voluntary discovery. Dkt. #41, p.31. By this request, however, the defendant "moves to compel discovery of all items or information to which the Defendant is entitled." Id. Moreover, the defendant specifies the following ten separately lettered requests: (a) records, including reports and/or logs, relating to the arrest of all co-conspirators; (b) all records, including reports and/or logs, regarding radio transmissions from the officers at any search warrant or arrest scene regarding the investigation; (c) reports relating to the booking process; (d) reports and/or test results relating to determination of drug quantity or type of drug; (e) photographs taken relating to investigation; (f) documents and photographs seized on the day of any searches; (g) inspection of all items seized from the defendant on the day of his arrest; (h) names and identities of expert witnesses, their qualifications, such of testimony, reports, results of tests, examinations or experiments; (i) any search warrant, arrest warrant, wiretap order and/or surveillance order applied for and/or issued or denied during investigation; (j) written notification pursuant to Rule 12(d) of the Federal Rules of Criminal Procedure of any evidence on which the government intends to rely that may be the subject of a motion to suppress and to which the defendant is entitled to discovery pursuant to Rule 16. Id. at pp.32-33.
In its response, the government states that it has provided the defendant with significant voluntary discovery and adds that the government's file "is open for inspection except as to identity of witnesses and witness statements." Dkt. #53, pp.6 and 21. Specifically, the government states,
The discovery included copies of all the patient files seized during the execution of a search warrant in MEHTA'S office on January 27, 2011; copies of the patient files relating to the recorded office visits; copies of all prescriptions that were issued while Mehta was outside the United States; copies of the recorded office visits; a copy of the expert report; and reports of certain interviews conducted during the investigation. The government hereby advises counsel for the defendant that the government file, except for certain witness statements, is available for inspection. In addition, the defendant has received a copy of the search warrant application and affidavit which, in conjunction with the information in the Criminal Complaint (11-M-41), provides a detailed description of the government's evidence in this case.
Dkt. #53, pp.6-7. In response to the defendant's ten requests summarized above, the government indicated that all records relating to the arrest of co-conspirators, reports relating to the execution of the search warrant and arrest warrants will be disclosed in accordance with the Jencks Act. The government indicated that copies of any booking reports will be provided, if required, in accordance with the Jencks Act. The government has stated that there has been no testing relative to drug quantity or type. Copies of all photographs taken during the investigation are available for inspection, as are items seized during the execution of the search warrant. Copies of medical records seized have been provided to the defendant and computer equipment seized during the execution of the search warrant has been returned to the defendant. With respect to the government's expert witness, Dr. Theodore Parran, his report and curriculum vitae were attached to the Criminal Complaint. The government further stated that the search warrant and supporting documentation was provided to the defendant. Finally, the government advises that at the trial it "intends to introduce certain medical records seized from the defendant's medical office. Copies of all such records have been provided. The government also intends to introduce consensual recordings of the defendant with the confidential sources/undercover officers. Copies of those recordings have been provided to the defense." Dkt. #53, p.22. In addition to the foregoing, the defendant also seeks the following documents and information.
Statements of Defendant
Under the heading, Statements of Defendant, defendant Mehta seeks all oral, written or recorded statements of the defendant, as well as books, papers, documents, photographs or tangible objects obtained from or belonging to the defendant, search warrants, recordings, expert witness information, and prior similar acts or other crimes. Dkt. #41, pp.34-37. In its response, the government reiterates that copies of documents and physical evidence the government intends to introduce at trial are available for inspection. Copies of all photographs, drawings and recordings are available or have been provided. Copies of the search warrant, application and supporting documentation and inventory have been provided to the defense. The government states that copies of all recordings have been provided to the defense. Finally, the government states that expert witness information had been provided and that Federal Rule of Evidence 404(b) evidence, if any, will be addressed in the government's pretrial memorandum.
Defendant's Prior Record
In response to the defendant's request for a copy of his prior criminal record, the government acknowledges that the defendant has no prior criminal record in the United States.
Documents and Tangible Objects
In its response to the defendant's request seeking the disclosure of any tangible items the government intends to use as evidence in chief, obtained from the defendant, material to the preparation of a defense and all recordings of conversations pertaining to the facts alleged in the indictment, the government states that it has "supplied and/or made available all the documents it intends to introduce at trial." Dkt. #53, p.24.
Search and Seizure
As discussed above, copies of the search warrant, application, supporting documentation and inventory have been provided to the defendant. Id.
The government advises that there were no formal or informal identification procedures used in this case. Indeed, all witnesses who will identify the defendant will do so based on their interactions and familiarity with the defendant. Id.
Reports of Examinations and Tests
As the government has previously advised, the report generated by the government's expert, Dr. Theodore Parran and Parran's curriculum vitae were attached to the Criminal Complaint.
Jencks Material
Because the defendant has made a separate request for witness statements, the Court will address his requests below.
Accordingly, based on the representations made by counsel for the government and as set forth above, defendant Mehta's motion for discovery is denied.
Brady Material
Within his broad request labeled " Brady Material, " the defendant seeks the immediate disclosure of all exculpatory and/or impeaching material in the government's possession, custody and control. Specifically, the defendant seeks the following five categories, including twenty-one sub-categories, of documents, information and/or material tending to exonerate Mehta, evidence tending to impeach the credibility of any prospective government witness, written and oral statements made by any person, including co-defendants, with knowledge of the events charged in the Indictment, written or oral statements made by persons and/or co-defendants the government believes has information helpful to the defense, and name and address and the written or oral statements of any witness or co-defendant whom the government does not intend to call as a witness. Dkt. #41, pp.41-56. Thus, the Court will treat this request principally as one for Brady and Giglio material. In its response the government states,
[t]he Government acknowledges its affirmative and continuing duty to provide the defendant with exculpatory evidence, under the authority of Brady v. Maryland , 373 U.S. 83 (1963), as well as evidence that the defense might use to impeach Government's witnesses at trial.... In the instant case, the Government agrees to provide impeachment Brady material, i.e., promises of leniency or immunity agreements with Government witnesses, plea and/or non-prosecution agreements and letters or memorandum of understanding regarding such, criminal arrest records of all prosecution witnesses, immoral, vicious or criminal acts committed by witnesses, prior inconsistent statements, and payments to witnesses or family members thereof, and all other promises or considerations given by Government personnel to Government witnesses or family members thereof, in accordance with the schedule set by the District Court prior to trial and no later than when the Government produces and delivers the Jencks Act material in this case.
Dkt. #53, pp.26 and 28 (internal citations omitted).
"[A]s a general rule, Brady and its progeny do not require immediate disclosure of all exculpatory and impeachment material upon request by a defendant." United States v. Coppa, 267 F.3d 132, 146 (2d Cir. 2001). The prosecution is obligated to disclose and turn over Brady material to the defense "in time for its effective use." Id. at 144. With respect to impeachment material that does not rise to the level of being Brady material, such as Jencks statements, the prosecution is not required to disclose and turn over such statements until after the witness has completed his/her direct testimony. See 18 U.S.C. § 3500; Fed. R. Crim. P. 26.2; In re United States, 834 F.2d 283 (2d Cir. 1987). However, if the government has adopted a policy of turning such materials over to the defendant prior to trial, the government shall comply with that policy; or in the alternative, produce such materials in accordance with the scheduling order to be issued by the trial judge.
Based on the representations made by counsel for the government as to its obligations under Brady and Giglio, the defendant's request is denied, but the government is hereby directed to comply with the Second Circuit Court of Appeals' holding in United States v. Coppa, 267 F.3d 132 (2d Cir. 2001) and United States v. Rodriguez, 496 F.3d 221 (2d Cir. 2007) by making timely disclosure of those materials to the defendant.
Rule 404(b), 608 and 609 Material
By this request, the defendant "respectfully requests that the government notify him of any evidence that the government contends would be admissible under Rule 404(b) of the Federal Rules of Evidence." Dkt. #41, p.57. In addition, the defendant also requests pretrial disclosure of any other evidence the government intends to use to impeach the defendant's credibility should he choose to testify. The defendant also requests a pre-trial hearing to determine the admissibility of such evidence. Id. Moreover, the defendant requests discovery of all information pertaining to the character and/or conduct that may be used to impeach any witness the government intends to call. Id. In its response, the government states that,
The government will advise the defendant of its intent to use "other acts" evidence pursuant to Fed.R.Evid. 404(b), or its intent to offer evidence pursuant to Fed.R.Evid. 608(b) and 609, at the time it is ordered to do so by the district court or consistent with its disclosure of Jencks material. It is submitted that any hearings on the admissibility of such evidence is a matter for the District Court at the time of trial.
Dkt. #53, p.29.
Rule 404(b) only requires that "the prosecution... provide reasonable notice in advance of trial... of the general nature of any such evidence it intends to introduce at trial." (Emphasis added). Insofar as the government has indicated that it intends to comply with any pretrial disclosure order entered by the trial judge and further, that it understands its disclosure obligations, defendant's request is denied as moot. The Court notes that the issue of admissibility of such evidence pursuant to Rules 403 and 404(b) of the Federal Rules of Evidence is best left to the determination of the trial judge at the time of trial. Accordingly, the defendant's request for an Order with respect to admissibility of such evidence is denied.
With respect to the defendant's request pursuant to Rule 608, Rule 608 does not contain the same pretrial notice as set forth in Rule 404(b). Therefore, there is no requirement on the part of the government to make any disclosure of evidence, or its intent to use evidence at the trial pursuant to Rule 608 at this time. Therefore, defendant's request in this regard is denied. With respect to the defendant's request pursuant to Rule 609, based on the representations made by counsel for the government, defendant's request is denied as moot. The government is hereby reminded that should the government learn of evidence of other crimes, wrongs and acts it intends to offer pursuant to Federal Rules of Evidence Rules 608 and 609 (impeachment material) during the trial, the government is hereby directed to provide such information consistent with its disclosure of Jencks Act material and the disclosure requirements set by the trial judge in advance of the trial.
Witness Statements
By this request, the defendant seeks the early disclosure of witness statements pursuant to Title 18, United States Code, Section 3500. Dkt. #41, pp.58-59. Specifically, the defendant requests the immediate disclosure of the witness statements, "but in no event not later than eight weeks prior to the date of the trial." Id. With respect to defendant Mehta's request for Jencks Act material, the government states that it recognizes its obligation to provide defendant with all previous statements of a government witness relating to the subject matter of the witness's testimony, but that such statements need only be disclosed after a witness is called by the United States to testify on direct examination. Dkt. #53, p.25. Accordingly, the government agreed to provide Jencks Act information two weeks prior to trial or as otherwise directed by the trial court.
As noted above, with respect to impeachment material that does not rise to the level of being Brady material, such as Jencks statements, the prosecution is not required to disclose and turn over such statements until after the witness has completed his direct testimony. See 18 U.S.C. § 3500; Fed. R. Crim. P. 26.2; In re United States, 834 F.2d 283 (2d Cir. 1987). However, if the government has adopted a policy of turning such materials over to the defendant prior to trial, the government shall comply with that policy; or in the alternative, produce such materials in accordance with the scheduling order to be issued by the trial judge.
Based on the representations made by counsel for the government, that it will comply with the trial judge's pretrial order concerning the disclosure of witnesses' statements, the defendant's request is denied. Notwithstanding the foregoing, the government is hereby directed to comply with the Second Circuit Court of Appeals' holding in United States v. Coppa, 267 F.3d 132 (2d Cir. 2001) and United States v. Rodriguez, 496 F.3d 221 (2d Cir. 2007) by making timely disclosure of those materials to the defendant.
Preservation of Rough Notes and Other Evidence
By this request, the defendant seeks an Order from this Court requiring all government agents and officers who participated in this investigation to retain and preserve all rough or handwritten notes taken as part of their investigation, regardless of whether or not the contents of the notes are incorporated in official records. Dkt. #41, p.59. In addition, the defendant also requests an Order from this Court directing the government to preserve and protect from destruction, alteration, mutilation or dilution any and all evidence acquired in their investigation of defendant. Id. In its response, the government states that it "has directed its agent [sic] to preserve all rough notes generated during the investigation. The government will provide those items prior to trial in accord with the Jencks Act and the directives of the trial court." Dkt. #53, p.29.
Although perhaps unnecessary, based on the representations made by counsel for the government concerning its acknowledgment of its obligation and its agreement to instruct the agents to retain and preserve rough notes, the express admonition of the Court of Appeals for the Second Circuit bears repeating in addressing this particular request of the defendant wherein the Court stated:
[W]e will look with an exceedingly jaundiced eye upon future efforts to justify non-production of a Rule 16 or Jencks Act "statement" by reference to "departmental policy" or "established practice" or anything of the like. There simply is no longer any excuse for official ignorance regarding the mandate of the law. Where, as here, destruction is deliberate, sanctions will normally follow, irrespective of the perpetrator's motivation, unless the government can bear the heavy burden of demonstrating that no prejudice resulted to the defendant.... We emphatically second the district court's observation that any resulting costs in the form of added shelf space will be more than counterbalanced both by gains in the fairness of trials and also by the shielding of sound prosecutions from unnecessary obstacles to a conviction.
United States v. Buffalino, 576 F.2d 446, 449-50, (2d Cir.), cert. denied, 439 U.S. 928 (1978); see also United States v. Grammatikos, 633 F.2d 1013, 1019-20 (2d Cir. 1980); United States v. Miranda, 526 F.2d 1319 (2d Cir. 1975), cert. denied, 429 U.S. 821 (1976). Accordingly, the government is hereby directed to maintain and preserve all materials that are known by the government to exist, that constitute potential Jencks Act material in this case.
Production of Grand Jury Transcripts
By this request, the defendant seeks an Order pursuant to Rule 6(e)(3)(C)(I) of the Federal Rules of Criminal Procedure for the disclosure of the transcripts of the testimony and all exhibits presented to the Grand Jury that indicted the defendant. Dkt. #41, p.60. In support of his request, the defendant argues that he,
is the subject of a bare bones Indictment. Dr. Mehta has limited information as to who the witnesses against him will be. The particularized need justifying disclosure is so that Dr. Mehta is informed of what evidence actually exists against him, and so he can intelligently make a decision as to his course of action.
Id. In its response the government asserts that contrary to the defendant's request, the Indictment in this case is very detailed. In addition, the government maintains that the defendant has failed to meet the particularized need test for the disclosure of grand jury transcripts. Dkt. #53, p.30.
It is a long-established rule that "[t]he burden... is on the defense to show that a particularized need' exists for the minutes [of the grand jury] which outweighs the policy of secrecy." Pittsburgh Plate Glass Co v. United States, 360 U.S. 395, 400 (1959). The assertion of the defendant as to his "particularized need" is legally insufficient to require disclosure of the grand jury proceedings as requested by him. It is pointed out that transcripts of grand jury testimony of witnesses called by the government to testify at trial must be made available to the defendant pursuant to and in accordance with the provision of 18 U.S.C. § 3500.
It is also pointed out that:
[A]n indictment valid on its face is not subject to challenge on the ground that the grand jury acted on the basis of inadequate or incompetent evidence.
United States v. Calandra, 414 U.S. 338, 345 (1978). Furthermore,
An indictment returned by a legally constituted and unbiased grand jury, like an information drawn by the prosecutor, if valid on its face, is enough to call for trial of the charge on the merits. The Fifth Amendment requires nothing more.
Costello v. United States, 350 U.S. 359, 363 (1956). Therefore, defendant's request for disclosure of the grand jury proceedings is denied.
Voir Dire of Expert Witnesses
By this request, the defendant seeks an Order permitting his counsel to conduct voir dire of any proposed government expert witness at trial outside the presence of the jury. Dkt. #41, pp.60-61. In support of his request, the defendant asserts that,
[i]n the present case, complete discovery has not been received from the government, including the names of and summaries by the government's proposed experts, if any, pursuant to Rule 16 of the Federal Rules of Criminal Procedure. Therefore, this motion is made so that if the government subsequently identifies any experts (such as to identify questioned substances), defense counsel may voir dire the expert outside the presence of the jury.
Id. at p.61.
In its response, the government states, "the government intends to call an expert witness, Dr. Theodore Parran, to testify as to the encounters between the defendant and the persons to whom he prescribed controlled substances. Whether the defendant is entitled to voir dire the expert witness outside the presence of the jury, is a call best left to the trial judge following submissions of all trial related proceedings." Dkt. #53, p.31. Accordingly, defendant's motion concerning voir dire of an expert witness outside the presence of the jury is premature and is denied as moot.
Audibility Hearing
Defendant has requested an audibility hearing "to determine whether any recordings that the government seeks to introduce at trial are audible." Dkt. #41, p.62. The defendant states that the government had identified some recordings it may introduce at trial. Further, defendant states that "counsel has reviewed the tapes previously provided. We believe that there are substantial portions of the tapes, where both audio and video are unintelligible and where substantial portions of the video cannot be observed." Id. Notably, the defendant does not specifically identify any audio or video recordings he believes to be unintelligible. In its response, the government states that it has produced video and audio recordings of encounters between the defendant and undercover officers/cooperating witnesses. Dkt. #53, p.31. Moreover, the government states that the possibility of an audibility hearing should not be addressed unless and until the defendant identifies portions of the recordings that he feels are inaudible. Id. In a subsequently filed memorandum, defendant Mehta reiterates that "the tapes, both video and audio, cannot be observed properly and there are significant areas where the tapes cannot be heard." Dkt. #50, p.11.
It would appear that neither counsel for the defendant nor counsel for the government have advised the Court that after a review of the audio recordings and video recordings that may be used at trial by the government, there are any actual audibility problems or issues with respect to specific recordings. Therefore, the defendant's motion in this regard is denied without prejudice to the right to reapply for such relief after the recordings have been reviewed and it is determined that there is an audibility issue that needs to be resolved by this Court. As part of this process, counsel for the government is hereby directed to identify those recordings that the government plans on using at the trial of the defendant and to have transcripts of those tape or CD recordings prepared. Once such transcripts have been prepared, counsel for the government shall supply copies of the designated tapes or CDs and respective transcripts to counsel for the defendant. Counsel for the defendant is hereby directed to review the aforesaid tapes or CDs and transcripts after receipt of same, and upon completion of such review, make known to counsel for the government those portions of the aforesaid tapes or CDs and transcripts that counsel for the defendant claims are inaudible or, in the alternative, inaccurately transcribed. Thereafter, counsel for the government and the defendant are directed to confer for the purpose of resolving any disputes that may exist as to audibility of the tapes or CDs in question and the correctness of the transcripts of such tapes or CDs. Should the attorneys be unable to resolve any such disputes that may exist, counsel for the defendant may file a motion for an audibility hearing, which motion must be filed and served within ten days after the last conference between the attorneys seeking to resolve such issues.
Motion for Leave to Make Other Motions
By this request, the defendant, "respectfully moves the Court for an order allowing him to make further and additional motions which may be necessitated by due process of law, by the Court's ruling on the relief sought herein, by additional discovery provided by the government or investigation made by the defense, and/or by any information provided by the government in response to the defendant's demands." Dkt. #41, p.89. Subject to the limitations contained in the aforesaid quotation, the defendant's request to make further and additional motions that may be necessary is granted.
Government's Request for Reciprocal Discovery
In addition to the relief requested by the defendant, the government has made a request for reciprocal discovery. Dkt. #53, pp.53-54. The government has requested that the defendant permit it to inspect and copy all books, papers, documents, photographs and other tangible objects which the defendant intends to introduce as evidence-in-chief at the trial. In addition, the government seeks to inspect all reports of physical or mental examinations and of scientific tests or experiments, within the possession or control of the defendant along with written summaries of expert witness testimony that the defendant intends to use at trial. Since the defendant has moved pursuant to Rule 16(a)(1) of the Federal Rules of Criminal Procedure for similar materials and information, the government is entitled to this information pursuant to Rule 16(b)(1) and its request is granted.
Therefore, it is hereby ORDERED pursuant to 28 U.S.C. § 636(b)(1) that:
This Decision and Order be filed with the Clerk of Court.
ANY OBJECTIONS to this Decision and Order must be filed with the Clerk of this Court within fourteen (14) days after receipt of a copy of this Decision and Order in accordance with the above statute, Fed. R. Crim. P. 58(g)(2) and Local Rule 58.2.
The district judge will ordinarily refuse to consider de novo, arguments, case law and/or evidentiary material which could have been, but were not presented to the magistrate judge in the first instance. See, e.g., Paterson-Leitch Co., Inc. v. Massachusetts Municipal Wholesale Electric Co., 840 F.2d 985 (1st Cir. 1988). Failure to file objections within the specified time or to request an extension of such time waives the right to appeal the District Judge's Order. Thomas v. Arn, 474 U.S. 140 (1985); Wesolek, et al. v. Canadair Ltd., et al., 838 F.2d 55 (2d Cir. 1988).
The parties are reminded that, pursuant to Rule 58.2 of the Local Rules for the Western District of New York, "written objections shall specifically identify the portions of the proposed findings and recommendations to which objection is made and the basis for such objection and shall be supported by legal authority." Failure to comply with the provisions of Rule 58.2, or with the similar provisions of Rule 58.2 (concerning objections to a Magistrate Judge's Decision and Order), may result in the District Judge's refusal to consider the objection.
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text:
Camarones Borracho
Total Time
Prep 4 hrs
Cook 2 mins
Easy, nice dinner from down south. Until you've eaten mexican food by the pacific, sipping Tecate and watching the sun slip into the ocean, this will suffice till you get down south. I serve this with rice and a squeeze of lime for both the beer and the shrimp.
Ingredients Nutrition
- 2 tablespoons silver tequila
- 1 tablespoon olive oil
- 1 tablespoon Worcestershire sauce
- 1 teaspoon dried oregano
- 1 teaspoon kosher salt
- 1 teaspoon paprika
- 1 serrano chili, stemmed & seeded
- 1⁄4 cup cilantro, no stems
- 3 garlic cloves
- 24 large raw shrimp, peeled and deveined
- Place marinade into a blender, puree till smooth, adjust seasonings and puree again if needed Place raw shrimp in a glass bowl, pour marinade over shrimp, stirring to coat Cover bowl and refrigerate mixture 4 hours.
- Heat a large skillet on high heat till hot, add shrimp and marinade, tossing till shrimp are pink and cooked through, about 2 minutes Serve on rice.
Most Helpful
This was really good and easy to prepare. I used dried chile flakes instead of the serrano chili. One person found it too hot and I found it just right. I made the sauce separately then warmed up some pre cooked shrimp in the sauce and served over rice. Great luncheon dish. Thanks peachez

subset: commoncrawl


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March 3, 2011
AMBER ARPAIO, PLAINTIFF,v.ASHLEY ALEXANDRA DUPRE,JOSEPH FRANCIS,MRA HOLDING, LLC, MANTRA FILMS, INC., JOHN DOES 1 THROUGH 10,AND ABC CORPORATIONS 1 THROUGH 10, DEFENDANTS.
On July 11, 2008, Plaintiff Amber Arpaio commenced this action against Defendants Joseph Francis, MRA Holding, LLC, Mantra Films, Inc., and Ashley Alexandra Dupre (collectively, "Defendants"). Plaintiff's claims stem from Dupre's use of Plaintiff's name and likeness in a salacious video and its subsequent publication on the Internet by Francis. The video's publication quickly followed the revelation that Dupre was the infamous prostitute at the center of the scandal that led to the resignation of New York Governor Eliot Spitzer. Though Plaintiff received a waiver of service from the other defendants, her efforts to serve Dupre encountered obstacles that cast doubt on their effectiveness. At a proof and damages hearing held before the Court on October, 19, 2010, Plaintiff detailed her efforts to serve process on Dupre, substantiated the damages caused by Defendants' actions, and requested an entry of default judgment. For the reasons set forth below, the Court enters default judgment for Plaintiff against Defendants Joseph Francis, MRA Holding, LLC, and Mantra Films, Inc. Because service of process on Defendant Dupre was not made, however, the Court orders Plaintiff to effect proper service against Dupre or her claims against her will be dismissed for failure to prosecute.
Eliot Spitzer resigned from the office of Governor of the State of New York on March 12, 2008. Two days earlier, the New York Times reported that the governor had "been caught on a federal wiretap arranging to meet with a high-priced prostitute at a Washington hotel." Danny Hakim & William K. Rashbaum, Spitzer Is Linked to Prostitution Ring, N.Y. Times, Mar. 10, 2008, available at http://www.nytimes.com/2008/03/10/nyregion/10cnd-spitzer.html. The "high-priced prostitute" with whom Spitzer had his Washington assignation was later revealed as Defendant Ashley Alexandra Dupre.*fn1 Media coverage surrounding the affair was intense as the scandal took on a wide public following and the players became notorious. Indeed, Dupre was soon acknowledged by the celebrity gossip industry as "the most famous prostitute in America." Ashley Dupre Offered $1 Million By Girls Gone Wild, The Hollywood Gossip (Mar. 18, 2008, 12:09 PM), http://www.thehollywoodgossip.com/2008/03/ashley-dupre-offered-1-million-by-girls-gone-wild/.
I. Factual Background
Hoping to capitalize on the media attention, Defendant Joseph Francis, head of Defendant Mantra Films, Inc. ("Mantra"), offered Dupre $1 million to appear in a magazine spread and participate in a promotional tour with the "Girls Gone Wild" franchise. Solvej Schou, 'Girls Gone Wild' founder says Spitzer call girl was in video archives; pulls $1 million offer, Associated Press, Mar. 19, 2008. "Girls Gone Wild" has been described as "a popular series of sexually graphic DVDs . . . which feature young women drinking and partying while frequently exposing themselves in whole or in part." United States v. Mantra Films, Inc., 240 Fed. Appx. 372, 372 (11th Cir. 2007).*fn2 This offer was quickly pulled off the table, however, when Francis discovered that he had archived footage of Dupre from five years earlier, when Dupre joined a "Girls Gone Wild" bus tour for a week. See Schou, supra.
On April 28, 2008, Dupre filed a $10 million federal suit in Florida against Francis, alleging that he improperly used her image from archived footage to promote his "Girls Gone Wild" series. See Complaint, Dupre v. Francis, et al. ("Dupre v. Francis"), Civil Action no. 1:08-cv-21238 (S.D. Fla. 2008). Dupre further alleged that because she was only 17 years of age at the time, she did not understand the implications of signing any legal release. Id. According to news reports, Francis responded by releasing a video to the public in which a 17-year-old Dupre, covered only in a towel, provides consent to be in "Girls Gone Wild," states that she is 18, and provides her name as Amber Arpaio. Curt Anderson, 'Girls Gone Wild': Video proves call girl agreed to appear, Associated Press, Apr. 30, 2008. The video also provides a close-up view of a New Jersey driver's license in the name of Amber Arpaio. Id. Soon after the release of the video, Dupre voluntarily dismissed her suit against Francis. See Order Dismissing Case, Dupre v. Francis.
II. Service of Process
On July 11, 2008, Plaintiff Amber Arpaio filed her Complaint against Dupre, Francis, Mantra, and MRA Holding, LLC ("MRA"), seeking compensatory and punitive damages for invasion of her privacy, misappropriation of her name for Defendants' benefit, unauthorized use of her name for advertisement, defamatory injury to her reputation, and conspiracy. Plaintiff submitted an affidavit testifying to the difficulty in serving the named defendants on December 29, 2008. On January 7, 2010, Plaintiff filed proof that Francis, Mantra, and MRA waived service and the Clerk of the Court accordingly entered default against those defendants on April 5, 2010.
Service upon Dupre proved to be more problematic. On March 9, 2009, Plaintiff's process server observed a woman leaving from Dupre's "last known address" in Wall, New Jersey. Aff. of Service, (Docket Entry no. 19). Upon the woman's entering her Mercedes Benz, the process server followed her to a fitness club in nearby Manasquan. "Upon exiting the vehicle," however, "it is determined that the female is Ashley Dupre's mother who looks extremely youthful and similar to Ashley." Id. The process server returned the next day to Dupre's "last known address," where loud music was playing. Upon the process server's knocking on the front door, the music ceased. After twenty seconds, the process server began to knock again, and the music restarted. "Now [the process server] knocks on the door using a large brass knocker fastened to the door. It is an extremely loud and effective knocker, but the music continues and no one comes to the door." Id. The process server then left a copy of the summons in the residence's mailbox. From May through July 2009, Plaintiff's counsel had no less than three phone calls with another lawyer who revealed to him that she had been approached by Dupre regarding possible legal representation in this matter and acknowledged that Dupre did receive the summons and complaint.*fn3 Id. After filing with the Court an affidavit describing the previous attempts to serve Dupre, the Clerk of the Court entered default against Dupre on August 31, 2009.
The Court conducted a proof and damages hearing on October 19, 2010, in which Plaintiff moved for an entry of default judgment against all defendants. At the hearing, the Court asked Plaintiff's counsel to submit an additional affidavit of service upon Defendants, which Plaintiff filed on November 8, 2010. That affidavit, (Docket Entry no. 37), explained the initial difficulty in serving Defendants and provided proof of the waiver of service by Francis, Mantra, and MRA. The affidavit also reiterated the process server's attempts to serve Dupre and the communications between Plaintiff's counsel and the lawyer approached by Dupre. Id. The affidavit concluded by describing Plaintiff's mailing Dupre an amended complaint by certified mail, which was returned "unclaimed." Id.
III. Discussion
A. Sufficiency of Service of Process
Service of process is governed by Federal Rule of Civil Procedure 4, which provides four methods for serving an individual within a judicial district of the United States: (1) delivering a copy of the summons and of the complaint to the individual personally; (2) leaving a copy of each at the individual's dwelling or usual place of abode with someone of suitable age and discretion who resides there; (3) delivering a copy of each to an agent authorized by appointment or by law to receive service of process; or (4) following state law for service of process. Fed. R. Civ. P. 4(e). Generally, federal courts have no power to render a judgment against a party who has not been served properly. Taylor v. Sturgell, 553 U.S. 880, 884, 128 S. Ct. 2161, 2167 (2008) ("It is a principle of general application in Anglo-American jurisprudence that one is not bound by a judgment in personam in a litigation . . . to which he has not been made a party by service of process."). Accordingly, as a general matter, the Third Circuit recognizes that the entry of a default judgment without proper service renders that judgment void. United States v. One Toshiba Color Television, 213 F.3d 147, 156 (3d Cir. 2000) (citing Gold Kist, Inc. v. Laurinburg Oil Co., Inc., 756 F.2d 14, 19 (3d Cir.1985)). Finally, actual notice to the defendant is not an appropriate substitute for proper service of process. See, e.g., Omni Capital Int'l, Ltd.v. Rudolf Wolff & Co., Ltd., 484 U.S. 97, 104, 108 S. Ct. 404, 409 (1987) ("[B]efore a court may exercise personal jurisdiction over a defendant, there must be more than notice to the defendant . . . ."); In re Mansaray-Ruffin, 530 F.3d 230, 242 (3d Cir. 2008) (stating that "actual knowledge" of a case did not eliminate the right to service of process).
A review of the record reveals that Dupre was not properly served. Plaintiff's counsel avers in an affidavit that a process server left a copy of the complaint and summons in the mailbox of Dupre's "last known address." Such delivery does not constitute personal delivery, nor delivery to an individual at Dupre's dwelling or usual place of abode, nor delivery to an agent. It does not constitute service as otherwise allowed by New Jersey law. Therefore, service was not effected pursuant to Federal Rule of Civil Procedure 4. Plaintiff's counsel further states by way of affidavit that Dupre had actual notice of the action because she had approached another lawyer about possible representation in this matter. See Affs. of Service, (Docket Entry nos. 19 & 37). Actual notice, however, is not a sufficient substitute for proper service. Omni Capital Int'l, Ltd., 484 U.S. at 104. Because service was defective, it is not proper for the Court to enter default judgment against Dupre. The Court instead will allow Plaintiff 45 days to properly serve Dupre, or the claim against her will be dismissed for failure to prosecute. An appropriate order shall issue.
B. Default Judgment
In an application for an entry of default judgment, the Court accepts as true any facts contained in the pleadings regarding liability. Fed. R. Civ. P. 8(b)(6). Legal conclusions, however, are not deemed admitted. DIRECTV, Inc. v. Pepe, 431 F.3d 162, 165 (3d Cir. 2005). Neither are the extent and amount of damages claimed by a party. Fed. R. Civ. P. 8(b)(6). Thus, the Court must receive an affidavit or conduct a hearing in which damages are substantiated unless the claim is for a sum certain or a sum that can be made certain by computation. See Fed. R. Civ. P. 55(b)(1) (allowing the Clerk's entry of default judgment when damages amounts are certain).
Parties are not entitled to an entry of default judgment as of right; instead, the matter is addressed to the sound discretion of the court. Tozer v. Charles A. Krause Milling Co., 189 F.2d 242, 244 (3d Cir. 1951). The Third Circuit "does not favor entry of defaults or default judgments." United States v. $55,518.05 in U.S. Currency, 728 F.2d 192 (3d Cir. 1984). Rather, it prefers adjudication on the merits. Hill v. Williamsport Police Dep't, 69 Fed. Appx. 49, 51 (3d Cir. 2003). "Three factors control whether a default judgment should be granted: (1) prejudice to the plaintiff if default is denied, (2) whether the defendant appears to have a litigable defense, and (3) whether defendant's delay is due to culpable conduct." Chamberlain v. Giampapa, 210 F.3d 154, 164 (3d Cir. 2000).*fn4
In the pleadings, Plaintiff asserts several causes of action against the defendants. Her first claim is for invasion of privacy. New Jersey law recognizes an invasion of privacy claim involving "publicity that unreasonably places the other in a false light before the public." Romaine v. Kallinger, 537 A.2d 284, 289-90 (N.J. 1988). The Supreme Court of New Jersey has stated: Liability for this form of privacy invasion is found when one gives publicity to a matter concerning another that places the other before the public in a false light and (a) the false light in which the other was placed would be highly offensive to a reasonable person, and (b) the actor had knowledge of or acted in reckless disregard as to the falsity of the publicized matter and the false light in which the other would be placed.
Id. at 290. Plaintiff alleges in her pleadings that Francis, Mantra, and MRA presented a video to the general public wherein Dupre represented herself as Plaintiff. Plaintiff further alleges that Dupre was affiliated with the "Girls Gone Wild" franchise, which includes a popular video series in which women expose themselves and perform sexual acts. Plaintiff further alleges that Francis, Mantra, and MRA knew or recklessly disregarded that Dupre was not in fact Plaintiff, and that they knew or recklessly disregarded that Plaintiff would be perceived by the general public to be associated with the "Girls Gone Wild" franchise. Assuming that these facts are true, as the Court must in response to an application for an entry of default judgment, Plaintiff has met her burden for proving liability for an entry of default judgment as to an invasion of privacy.
Plaintiff also makes a claim for misappropriation of her name for Defendants' benefit. Under New Jersey law, publicly exposing someone else's name or likeness for a commercial or beneficial purpose is actionable.*fn5 See Bisbee v. John C. Conover Agency, Inc., 452 A.2d 689, 693 (N.J. Super. Ct. App. Div. 1982) (explaining that publicity is actionable when it is "shown that defendant acted with a commercial purpose or otherwise sought some benefit from revealing information about plaintiffs"). Citing from the Restatement (Second) of Torts, the New Jersey Superior Court specified that "when the publicity is given for the purpose of appropriating to the defendant's benefit the commercial or other values associated with the name or the likeness . . . the right of privacy is invaded." Id. Plaintiff alleges in her pleadings that that Francis, Mantra, and MRA presented a video to the general public wherein Dupre represented herself as Plaintiff.
Plaintiff further alleges that Francis, Mantra, and MRA have used this video in their marketing and advertising. Assuming that these facts are true, as the Court must in response to an application for an entry of default judgment, Plaintiff has met her burden for proving liability for an entry of default judgment as to a misappropriation of her name for Defendants' benefit.
Plaintiff next makes a claim for defamatory injury to reputation. Under New Jersey law, anyone who makes a false and defamatory statement of fact to another person concerning a private figure is liable if he or she had actual knowledge that the statement was false, or recklessly disregarded the statement's truth or falsity, or acted negligently by failing to determine the falsity of the statement. Feggans v. Billington, 677 A.2d 771, 775 (N.J. Super. Ct. App. Div. 1996). Plaintiff alleges in her pleadings that Francis, Mantra, and MRA presented a video to the general public wherein Dupre represented herself as Plaintiff. Plaintiff further alleges that Dupre was affiliated with the "Girls Gone Wild" franchise, which includes a popular video series in which women expose themselves and perform sexual acts. Plaintiff further alleges that Francis, Mantra, and MRA knew that Dupre's representation was false when they presented the video to the general public, or recklessly disregarded the statement's truth or falsity. Assuming that these facts are true, as the Court must in response to an application for an entry of default judgment, Plaintiff has met her burden for proving liability for an entry of default judgment as to defamatory injury to reputation.
Plaintiff makes a final claim for conspiracy to commit a tort. "A civil conspiracy is a combination of two or more persons acting in concert to commit an unlawful act, or to commit a lawful act by unlawful means, the principal element of which is an agreement between the parties to inflict a wrong against or injury upon another, and an overt act that results in damage." Morgan v. Union Cnty. Bd. of Chosen Freeholders, 633 A.2d 985, 998 (N.J. Super. Ct. App. Div. 1993) (citations and internal quotation marks omitted). Plaintiff alleges that Francis, MRA, and Mantra collectively acted to defame Plaintiff when they presented a video to the general public wherein Dupre represented herself as Plaintiff. Assuming that these facts are true, as the Court must in response to an application for an entry of default judgment, Plaintiff has met her burden for proving liability for an entry of default judgment as to a conspiracy to commit a tort.
"Three factors control whether a default judgment should be granted: (1) prejudice to the plaintiff if default is denied, (2) whether the defendant appears to have a litigable defense, and (3) whether defendant's delay is due to culpable conduct." Chamberlain, 210 F.3d at 164. It is clear that prejudice to Plaintiff would result from a denial of default judgment because Plaintiff would be required to further prosecute the case against defendants who have not yet answered. Such prosecution costs time and money. Defendants have made no showing of any litigable defense, although the Court notes, sua sponte, the defective service on Dupre to avoid unnecessary litigation upon entry of default judgment. Finally, Defendants have made no showing that their delay is due to any legitimate reason. Therefore, with respect to Francis, Mantra, and MRA, the Court will enter default judgment. For reasons set forth above, an entry of default judgment will not issue against Dupre. An appropriate order shall issue.
IV. Assessment of Damages
Plaintiff's claims for invasion of privacy and misappropriation of her name both fall under the action of invasion of privacy. See Rumbauskas v. Cantor, 649 A.2d 853, 856 (N.J. 1994) (explaining four classifications of invasion of privacy). The Restatement (Second) of Torts § 652H (1977) recognizes the following damages for invasion of privacy:
One who has established a cause of action for invasion of his privacy is entitled to recover damages for (a) the harm to his interest in privacy resulting from the invasion; (b) his mental distress proved to have been suffered if it is of a kind that normally results from such an invasion; and (c) special damage of which the invasion is a legal cause.
For her claims of defamation, Plaintiff is entitled to damages for all the detrimental effects of a defamatory statement relating to Plaintiff's reputation which were reasonably to be foreseen and which are the direct and natural result of the defamatory statement. New Jersey's Model Civil Jury Charges describe the proof necessary for damages claimed for defamation:
[Plaintiff] seeks compensatory damages for particular material, economic or financial losses suffered directly by him/her as the proximate result of the injury to the his/her reputation caused by the defamation. These compensatory damages are sometimes referred to as special damages. These damages are never presumed; they must be specified by [plaintiff] and proved by the evidence. [Plaintiff] must show you what the special loss was and by what sequence of connected events it was produced by the defamation. [Plaintiff] can recover these damages only if you determine that [defendant's] conduct was a substantial factor in causing [plaintiff's] material, economic or financial losses. Evidence of embarrassment, mental suffering or physical sickness will not, without more, entitle [plaintiff] to these damages. . . .
The foundation of an action for defamation is the injury to reputation. Hence, any award [made] as part of the compensation to plaintiff may only be to redress consequences which followed from injury to [plaintiff's] reputation. In connection with [plaintiff's] claimed emotional distress . . . she may be compensated . . . for such ill effects only if . . . she experienced them because of the actual damage done to his/her reputation. If . . . his/her emotional suffering was caused only by his/her having (read the libel) (heard the slander), and not by the publication's impact upon his/her reputation, you may not consider such suffering in arriving at the amount of damages you choose to award [plaintiff].
N.J. Model Jury Charge (Civil) 8.46 "Defamation Damages" (March 2010).
Plaintiff also seeks punitive damages. Punitive damages may only be awarded if Plaintiff has proved, by clear and convincing evidence, that the harm suffered by Plaintiff was the result of a defendant's actions or omissions and that either (1) the defendant's conduct was malicious or (2) the defendant acted in wanton and willful disregard of another's rights. N.J. Model Jury Charge (Civil) 8.60 "Punitive Damages Actions" (March 2010).
The Court held a proof and damages hearing on October 19, 2010. At the hearing, the Court heard testimony from Plaintiff; Plaintiff's father, Jerry Arpaio; and Miles Benjamin Neustein, Esq., qualified as an expert on the dissemination of information through the Internet. Plaintiff and her witnesses presented evidence on the extent of injury caused by Defendants' actions and statements and the emotional distress incurred by Plaintiff. Plaintiff testified to her distress from being mistaken as somehow affiliated with Dupre or "Girls Gone Wild." She also expressed fear that any future employment is jeopardized because an Internet search would be conducted upon application; and, further, that she is apprehensive that, were she to have children, they would be exposed to the insulting material. The Court finds her concerns to be well-founded. Her father also related his reaction to the Internet video and his daughter's emotional distress. In addition, Plaintiff submitted for the Court a report from her psychologist, who concluded that as a result of Defendants' actions, Plaintiff now "carries deep psychological scars," and exhibits "a number of classic symptoms of post-traumatic stress disorder." (Pl.'s Proposed Findings of Fact, Exh. A).
Plaintiff also submitted a report by Mr. Neustein that paralleled his testimony. See id. Mr. Neustein presented evidence that a simple Google search of Plaintiff's name produces over 130,000 "hits," or sites that contain her name, many of which feature pornographic material. Id. He concluded that "the public light [that the posting of the Internet video] has cast upon the Plaintiff is not only international in scope, but also is one wholly and irrevocably tied [to] the rawest of pornography and all things otherwise appealing to the prurient interest." Id. Indeed, "given the unique nature of the Internet," Mr. Neustein wrote, "this branding is for life," and highly likely to adversely impact her employment prospects and personal relationships. Id. Having found the testimony of these witnesses to be credible, and having reviewed Plaintiff's justification for damages and its associated reports, the Court will grant Plaintiff's request for an award of damages in the amount of $3,000,000. An appropriate order shall issue.
V. Conclusion
Because the Court must accept as true all facts pled, it enters default judgment against Defendants Francis, Mantra, and MRA. Having found service against Defendant Dupre to be defective, the Court cannot enter default judgment against her, but will instead allow Plaintiff 45 days to properly serve Dupre, or the claim against her will be dismissed for failure to prosecute. An appropriate order shall issue.
JOEL A. PISANO United States District Judge
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cream cheese swiss meringue buttercream | The Domestic Goddess Wannabe
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Cream Cheese Apple Coffee Cake
Cream Cheese Chocolate Truffles (for LCHF forget the lowfat anything--go for the good stuff!)
Cream Cheese Sugar Cookies. The recipe that I ALWAYS get asked for the recipe!


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Dunshek's Purifier
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|Dunshek's Purifier
|Unique weapon details
Dunshek's Purifier is a Unique Item dropped by Dunshek the Purifier in The Shattered Ravines.
Weapon stats
- Holy Dmg: 11-22 (req. 9 Healing Prayers)
- Halves skill recharge of Healing Prayers spells (Chance: 20%)
- Halves casting time of Healing Prayers spells (Chance: 20%)


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Hardtack (For Pirates)
Total Time
Prep 15 mins
Cook 2 hrs
Shiver me timbers! Here's an old pirate recipe for all you scurvy dogs. I don't recommend it.
- Mix together salt and flour.
- Add enough water to make a very stiff dough and flatten until dough is about half an inch thick.
- Cut dough into 4 inch circles (or use a cookie cutter to make life easier).
- Punch holes in the middle of each circle with a fork.
- Bake at 250 degrees for 2-3 hours.
- Try to eat.
Most Helpful
Five stars for the real thing. I'm actually baking these to store in our earthquake survival kit - but the kids are enjoying munching on them.
LOL :) I wonder if this recipe is the same my great grandmother used to make us kids; she called 'em "Boards" and they were about that hard, but my sis and I enjoyed eating them. Iirc, we dunked them in milk.
Avast! I'd be lookin' a long while for ye recipe. I'll be servin' them up to me partner tonight. Thank ye!


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Men's CWST Larrabee Shirt
Men's CWST Larrabee Shirt
Drift forth in CWST's Larrabee Shirt. A grey wool blend that shifts from soft charcoal to a houndstooth blend. Two front pockets with standard collar and six buttons up the front. Two button cuffs to finish. Made in the USA. Shirt runs true to size. Auston is wearing a size Medium. Auston is wearing a size 31. Auston is 6'3", Chest 40", Waist 32", Inseam 34".
Shipping and returns (when eligible) are FREE for purchases from US and Canadian boutiques when shipped to customers located in the US or Canada. We offer a flat shipping fee of $20 for all international transactions.
Shipping Details
Returns are accepted on full-priced items except when item is marked as Final Sale. All sale items, including Make an Offer items, are FINAL SALE.
Returns Policy


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7880 Champion Way North Charleston SC 29418 MLS# 16004388 - North Charleston SC Real Estate
843-225-7007 - call to view this property today!
7880 Champion Way - $105,000
North Charleston, SC 29418
The Park At Rivers Edge
MLS # 16004388 - Residential Real Estate
Move-in ready end-unit 2 BR, 2.5 BA townhome nicely situated within a quiet gated community close to Bosch & Boeing. New 30-year roof was just installed. Kitchen features all stainless steel appliances. Downstairs has wood laminate & tile flooring....
View the Full Details and Schedule a showing of this home in North Charleston
Call 843-225-7007 for info
Please contact us if you have any questions or comments.


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One of the most comprehensively specified 80 Yachts ever built by Sunseeker. Ordered by an extremely knowledgeable owner, the specification reflects the time, effort and energy that was invested into this 80 to make it the boat that it is. Fitted with all the essential extras that should be found on a 80 Yacht including stabilizers, hardtop, water maker, upgraded generators, VIP cabin hull windows and much more. Please see list below for comprehensive information. The interior layout has been specified with the optional central staircase solution giving the accommodation area a balanced feel with all cabins benefitting from generous areas and en-suite facilities. From delivery the yacht is been meticulously maintained by its fastidious owner supported by a full time crew of three. The yacht is ready for immediate inspection and is absolutely ready for handover in time for the season. Priced at a very sensible level, the asking represents a substantial reduction from the original purchase price and has been placed up for sale as the owner is upgrading in the very near future.
Below deck arrangements allow for three full beam double suites, or two double guest cabins and two twin guest cabins with crew accommodation situated in the stern.
1 x (extra) Liferaft 8 Man Canister in stainless steel basket mounted on the outside of hand rail port and starboard side of flybridge (see customer GA)
2 Rope locker lids on the Port and Starbord side of the Cockpit, to be "double sided" so they are finished on the inside
2 x Sunseeker Boat Mats
3 x 500mm high horizontal feature panels, upholstered in Majilite Shimmer Wheat required for Forward Starboard bulkhead (between Forward Stateroom Bulkhead & Helm instrusion), Aft Port & Starboard bulkheads (companionway to Master Stateroom).
Additional Hardtop Switch mounted flush, located on the forward face of the aft seat box (inboard end)
Additional Trac control on Flybridge Helm
Aft facing Galley bulkhead to have feature 3D Brick design (as per 30M) panels upholstered in Majilite Legend Cream (stripes horizontal)
All Cabin doors to be Chequerboard design (88 Yacht style) in Black American Walnut - Satin finish
Antifouling Black, Micron 77, 150 Micron thickness applied to the Main Hull and 250 Microns applied to the Pressure Points
Black Acrylic illuminated boat name ABBY GRACE White Led backlit with LONDON none illuminated below
Change Port and Starboard Navigation lights to a different part (type tbc)
Cockpit one piece teak table with stainless steel inlay mounted on two stainless drum legs. (see drawing)
Coffee table to be similar to 30M Yacht design (size to suit 80 Yacht) in Black American Walnut -Satin finish with Black Fusion (mirror backed) glass inset. Note - Base plinth to be reduced to be 25mm wider than table top
Drawer unit required in place of standard Sofa. Cabinetry to be rounded to reflect vanity unit (drawers can be concealed behind curved doors). (Doors to be Zebrano as 1021080)
Flooring in dining area, Helm Area to be Close Boarded Teak with Satin finish (wide plank) as per 7141084 (Flooring to start at step in forward Saloon area and to extend down the forward steps to the lobby floor)
Flybridge GRP hardtop, Center Canopy Colour Sand
Flybridge one piece teak table with stainless steel inlay mounted on two white drum legs. (see drawing)
Fore deck teak table
Large Grey Water Tank (approx 925Ltrs) fitted below forward Cabin floor. Grey and black water tanks to have overboard and dockside Pump out facility
Large Organic Portholes (30 Meter Style) in Forward Vip in-lieu of standard Port holes on the Port and Starboard side.
Owners supplied Artificial Horizon mounted on the Flybridge Console. Position to be agreed with client.
Raymarine CCTV 6 Camera system:- two Infra-Red cameras (CAM50 PAL) in the engine room. Stern docking camera located on the stern moulding next to the Crew Cabin Door (as 1031080) to have reverse image. 1 Camera mounted above Main Helm looking aft. 1 Camera monted in the Cockpit just outside patio doors covering Cockpit area. 1 camera mounted aft pointing forward for Port side docking. All cameras Linked to the Raymarine displays on the Main Helm and Flybridge.
Raymarine G-Series GB170 -17" Glass Bridge additional Colour display with GPM400 Processor module and seatalk HS Network switch mounted on the lower console with G150 15" repeater on the Flybridge
Raymarine GB170 -17" Glass Bridge Colour Radar Chartplotter including GPM400 processor module and wired keyboard on the lower console with second repeater G150 -15" Colour display and keyboard on the flybridge with Raystar 125 GPS Diff receiver and 4kw 48" Super HD digital open scanner in lieu of std
Removable Stainless Steel Fiddles for Hob as 1041080 in the Galley
Stainless Steel Handrail to extend to bottom of staircase with small return to follow angle of ballustrade in the Lower Deck Lobby
Track fitted on the aft underside end of the Hardtop for future cover installation
Whilst every care is taken in the preparation of these details their accuracy cannot be guaranteed. They are intended as a guide only and do not constitute part of any contract. All prospective purchasers should be aware that the Builder, Sunseeker International Limited Model Year runs from the 1st of August to the 31st of July of the following year. The Company offers the details of this vessel in good faith but cannot guarantee or warrant the accuracy of this information nor warrant the condition of the vessel. A buyer should instruct his agents, or his surveyors, to investigate such details as the buyer desires validated. This vessel is offered subject to prior sale, price change, or withdrawal without notice.
|Motor Boats
|Sales status:
|Model:80 Yacht
|Mooring Country:
|Year built:
|24.44 m/80 ft
|6.07 m/20 ft
|3100.0 hp
Finalist of the Motorboat of the Year Awards 2013, The New 630 centre console sporstboat offers versatile ...
£ 29,995
In stock now, New Clear Aries Cabin (deluxe edition) ex-display boat never commissioned. New boat in stock now - ...
£ 34,995
Vat Included / Paid
Nederlands De Tiara 290 Sportcruiser is een stoer motorjacht. Alle Tiara modellen staan bekend om de zeer goede ...
£ 31,091
Vat Included / Paid
For that perfect day on the water. The new 720 features a fully equipped kitchenette with refrigerator, stove and ...
£ 40,619
The 660 Ocean Master, Cabin is built for weekend trips, as well as enjoyable day trips. Its full height in the ...
£ 27,995


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Office Space to Rent near Duddeston
We have a variety of serviced offices available to rent in Duddeston. Each office space is offered at the best rates and suited to your individual needs and requirements.
We have a variety of serviced offices available to rent in Duddeston. Each office space is offered at the best rates and suited to your individual needs and requirements.
Offering various office sizes with bespoke features that suit your budget and meeting needs. Car parking, on site storage space, easy access and IT connectivity available. Enquire today!
Ideally located in the heart of Digbeth, Birmingham's growing creative and digital sector, and offers almost immediate access to several major transport links such as the M6, Birmingham Coach Station, Birmingham New Street station and Birmingham Moor Street Station are all within easy reach, as well as a wide choice of amenities such as shops, restaurants and attractions.
Located in the heart of the Birmingham's Creative Quarter, these offices form the backbone of the iconic Custard Factory complex. Home to a cluster of creative, digital and artistic enterprises, it is the perfect place to grow an established business or launch that exciting start up. Hugely desirable benefits of this space include: city centre location (& postcode), incredible networking opportunities with a highly diverse hub of creative businesses, fantastic transport links, reception and postal services, discounted meeting and event space, having a foundation in Digbeth as it enters its exciting period of regeneration and 24-hour access. Green House is a highly flexible space with studio offices that range between 170-600 sqft. Scott House: Whether you are a fledgling start-up or an established brand looking to scale, Scott House has a plethora of benefits that elevate it above the usual, bland corporate spaces. With flexible office spaces that have occupancies ranging between 1 to 100 people, Scott House can offer a highly-desirable base to businesses of all sizes. Fazeley Studios: Located a mere ten minute walk from New Street Station and only a stone's throw from the iconic Custard Factory business and retail complex means that an office at Fazeley Studio offers endless networking opportunities with some of the most creative and pioneering companies in the UK. With office sizes ranging from 400-3000 sqft and an onsite café/bar and courtyard, it is the perfect place to launch the next phase of your business. Some of the benefits of these highly sought-after offices include: open plan studios with skylight windows, kitchenette, onsite Fazeley Social café/bar.
Offering various office sizes with bespoke features that suit your budget and meeting needs. Car parking, on site storage space, easy access and IT connectivity available. Enquire today!
A stunning a new landmark building located in the prime business district of the city of Birmingham. Rivalling the most prestigious of buildings in the City of London and Canary Wharf, not only offering superb facilities for its occupants but importantly the highest profile address available in Birmingham. The Business Centre has a beautiful and stylish reception with automated pedestrian turnstiles leading to the building's high-tech intelligent lifts. The offices are all fully furnished and equipped with new high quality furniture all set in a contemporary and stylish environment and complemented by the architectural splendour. The superb range of facilities and non-branded reception provide occupants with a perfect environment for business development with a range of conference and meeting rooms. Clients can choose from a range of office sizes including smaller suites to suit low or individual head count occupancy. Office layouts can be designed to match customer's needs and all benefit from telecoms, IT infrastructure, air conditioning, 24-hour access and security, lifts to all floors and secure car parking.
This business centre is situated in the heart of the sought after Colmore Business District. This location is perfect for commuters, with transport links by bus, rail, tram and road all within easy reach. The area has a well-balanced selection of eateries perfect for entertaining, plus an ever-expanding retail district on the door step. The newly extended Birmingham Metro Line now reaches from Snow Hill through to the brand new Grand Central. With Snow Hill Station located directly opposite this centre, and New Street Station within a 5-minute walk, all major cities across the UK can be reached by rail.
This centre provides character offices in a converted Victorian building close to Birmingham city centre. Built around an impressive landscaped courtyard, this well-established business centre offers secure accommodation in suites of varying sizes from an office for one person upwards. High quality offices available on flexible lease terms from small one-person managed offices to self-contained offices from 76 sq. ft. upwards. Secure access-controlled working environment with 24-hour access for tenants. There is secure on-site parking with additional parking available nearby. The friendly and efficient centre staff offer personalised telephone answering, secretarial and administration services. Meeting room facilities are available to hire and there is also an on-site café.
The latest and most prestigious development in Birmingham, just off Colmore Row, the City's premier business location. Brand new business centre with bright, fully serviced offices, with low level branding and luxury business lounge and well equipped meeting rooms.
These prestigious fully furnished, flexible office suites are located in the City Centre and offer advanced IT and telecoms supported by Category 5 cabling, 24hr access and security, meeting and conference rooms with audio-visual facilities and wide ranging business support services.
This Grade II Listed building has been extensively refurbished inside and out, and boasts contemporary fully serviced offices throughout. There is a reception on the ground floor along with a boardroom, meeting rooms and brand new business lounge for customers to use. There is an on-site team dedicated to providing you with excellent customer service leaving you free to concentrate on your business. The on-site team will also handle your mail and answer your telephone calls in your company name. There are no hidden charges or set-up costs, the price quoted is the price you pay meaning that you can easily forecast your future monthly outgoings without the worry of your office costs escalating. A short walk from Birmingham's centre, New Street and Snow Hill stations, it's bang in the middle of the business district, so you can rub shoulders with neighbours including KPMG and Pricewaterhouse Cooper.
Below you can see the nearest areas to Duddeston where you can find serviced offices: