Case 1:17-cr-00532-RBK Document 38 Filed 10/01/18 Page 1 of 63 PageID: 301 UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY UNITED STATES OF AMERICA V. FRANK NUCERA, JR. : : : : : : Hon. Robert B. Kugler Crim. No. 17-532 (RBK) ______________________________________________________________________________ GOVERNMENT’S OPPOSITION TO DEFENDANT FRANK NUCERA, JR.’S OMNIBUS PRETRIAL MOTION ______________________________________________________________________________ Craig Carpenito United States Attorney Federal Building & U.S. Courthouse 402 East State Street, Room 430 Trenton, NJ 08608 (609) 989-2190 On the Brief: Molly S. Lorber R. Joseph Gribko Assistant U.S. Attorneys Case 1:17-cr-00532-RBK Document 38 Filed 10/01/18 Page 2 of 63 PageID: 302 TABLE OF CONTENTS Page(s) TABLE OF CONTENTS ........................................................................................... i TABLE OF AUTHORITIES ....................................................................................... ii PRELIMINARY STATEMENT .................................................................................... 1 STATEMENT OF FACTS ......................................................................................... 2 ARGUMENT...................................................................................................... 25 I. Deletion of audio recordings by a witness who was not acting on behalf of the government, before any interaction with the government, is not grounds for dismissal of the Indictment. .............................................. 25 A. BTPD Sgt. Nathan Roohr’s deletion of personal audio recordings is not conduct chargeable to the federal government................................... 33 B. Nucera cannot establish that the deleted recordings are material. ...... 38 C. Nucera cannot establish that the FBI, or even Sgt. Roohr, acted in bad faith. ................................................................................................ 39 D. Nucera’s speculation that the FBI knew Sgt. Roohr was making recordings prior to the initiation of any formal investigation does not entitle him to an evidentiary hearing. ................................................ 41 II. There Is No Need For A Starks Hearing. ................................................ 43 III. Bifucation of Trial Would be Improper and Impracticable. ..................... 49 IV. The Government Will Comply With F.R.E. 404(b). ................................. 52 V. The Government Has Complied With Its Giglio Obligations. ................... 53 VI. The Governemnt Has Complied With Its Brady Obligations. .................. 54 VII.The Governemnt Has Instructed The Agents To Preserve Their Rough Notes. .................................................................................................. 55 VIII. The Government Is Aware Of Its Jencks Disclosure Obligations. ....... 56 IX. Defendant Should Not Be Permitted To File Additional Motions Based On Discovery Materials Already Received. .................................................. 56 X. Defendant Should Be Ordered To Provide Reciprocal Discovery To The Government. ........................................................................................ 57 CONCLUSION ................................................................................................... 58 i Case 1:17-cr-00532-RBK Document 38 Filed 10/01/18 Page 3 of 63 PageID: 303 TABLE OF AUTHORITIES Page(s) Cases Arizona v. Youngblood, 488 U.S. 51 (1988) .............................................. 28, 41 Bourjaily v. United States, 483 U.S. 171 (1987) .............................................. 46 Brady v. Maryland, 373 U.S. 83 (1963) .................................................... 26, 53 California v. Trombetta, 467 U.S. 479 (1984) ............................................ 27, 28 Coleman v. Home Depot, 306 F.3d. 1333 (3d Cir. 2002) ................................. 50 Colon v. Kuhlman, 865 F.2d 29 (2d Cir. 1988).................................... 32, 36, 42 DeShaney v. Winnebago Cty. Dep't of Soc. Servs., 489 U.S. 189 (1989) ..... 32, 42 Giglio v. United States, 405 U.S. 150 (1972) ................................................... 53 Government of Virgin Islands v. Testamark, 570 F.2d 1162 (3d Cir. 1978) ...... 29 Gov’t of Virgin Islands v. Fahie, 419 F.3d 249 (3d Cir. 2005) .......................... 27 Kyles v. Whitley, 514 U.S. 419 (1995) ...................................................... 26, 38 Link v. Mercedes-Benz of North America, Inc., 788 F.2d 918 (3d Cir. 1986) ..... 46 McQueeny v. Wilmington Trust Co., 779 F.2d 916 (3d Cir. 1985)..................... 46 Richardson v. Marsh, 481 U.S. 200 (1987) ..................................................... 49 Stinson v. United States, 508 U.S. 36 (1993) .................................................. 50 United Bhd. of Carpenters & Joiners v. Scott, 463 U.S. 825 (1983) .................. 32 United States v. Agurs, 427 U.S. 97 (1976) .................................................... 26 United States v. Barone, 913 F.2d 46 (2d Cir. 1990) ....................................... 48 United States v. Bornman, 559 F.3d 150 (3d Cir. 2009) .................................. 49 United States v. Boyd, 961 F.2d 434 (3d Cir. 1992) ........................................ 29 United States v. Brink, 39 F.3d 419 (3d Cir.1994) .......................................... 41 United States v. Bump, 605 F.2d 548 (10th Cir. 1979) ................................... 57 United States v. Busic, 587 F.2d 577 (3d Cir.1978) ........................................ 50 United States v. Christian, 302 F. App’x 85 (3d Cir. 2008) .............................. 41 United States v. Fuentes, 563 F.2d 527 (2d Cir.1977)..................................... 48 United States v. Goichman, 547 F.2d 778 (3d Cir. 1976) ................................ 47 United States v. Hamilton, 334 F.3d 170 (2d Cir. 2003) .................................. 48 ii Case 1:17-cr-00532-RBK Document 38 Filed 10/01/18 Page 4 of 63 PageID: 304 United States v. Higgs, 713 F.2d 39 (3d Cir. 1983) ......................................... 56 United States v. Hill, 976 F.2d 132 (3d Cir. 1992) .......................................... 27 United States v. Hines, 628 F.3d 101 (3d Cir. 2010) ....................................... 42 United States v. Jacobs, 44 F.3d. 1219 (3d. Cir. 1995) ................................... 50 United States v. Joshua, 976 F.2d 844 (3d Cir.1992)................................ 50, 51 United States v. Knohl, 379 F.2d 427 ............................................................. 48 United States v. Kopituk, 690 F.2d 1289 (11th Cir. 1982) ............................... 56 United States v. Kubiak, 704 F.2d 1545 (11th Cir.) ........................................ 56 United States v. Lacerda, No. 12–303, 2013 WL 3177814 (D.N.J. June 19, 2013) ......................................................................................................... 49 United States v. Lisyansky, No. S2-11-Cr.-986 (GBD), 2014 WL 1046750 (S.D.N.Y., March 13, 2014) .............................................. 36 United States v. Lore, 430 F.3d 190 (3d Cir. 2005) ......................................... 49 United States v. Loud Hawk, 628 F.2d 1139 (9th Cir. 1979) ........................... 29 United States v. McKeever, 169 F. Supp. 426 (S.D.N.Y. 1958) ........................ 45 United States v. Merlino, 349 F.3d 144 (3d Cir. 2003)..................................... 38 United States v. Pelullo, 14 F.3d 881 (3d Cir. 1994)........................................ 27 United States v. Pelullo, 399 F.3d 197 (3d Cir. 2005) ...................................... 38 United States v. Rahman, et al., 189 F.3d 88 (2d Cir. 1999) .................... passim United States v. Scott, 673 F.Supp.2d 331 (M.D. Pa. 2009) ............................ 50 United States v. Sherman, 426 F. Supp. 85 (S.D.N.Y. 1976) ........................... 57 United States v. Sophie, 900 F.2d 1064 (7th Cir. 1990) .................................. 42 United States v. Starks, 515 F.2d 112 (3d Cir. 1975) .......................... 43, 44, 45 United States v. Stevens, 935 F.2d 1380 (3d Cir. 1991) ............................ 29, 39 United States v. Taylor, 379 F. App’x 240 (3d Cir. 2010) ................................ 41 United States v. Tropeano, 252 F.3d 653 (2d Cir. 2001).................................. 48 United States v. Tutis, 167 F. Supp. 3d 683 (D.N.J. 2016) .............................. 49 United States v. Valenzuela-Bernal, 458 U.S. 858 (1982) ................................ 28 United States v. Vella, 562 F.2d 623 (3d Cir. 1976) ........................................ 55 United States v. Voigt, 89 F.3d 1050 (3d Cir. 1996) .................................. 41, 42 iii Case 1:17-cr-00532-RBK Document 38 Filed 10/01/18 Page 5 of 63 PageID: 305 Zafiro v. United States, 506 U.S. 534 (1993) ................................................... 49 Statutes 18 U.S.C. § 3500 ........................................................................................... 56 18 United States Code Section 1001(a)(2) ...................................................... 25 18 United States Code Sections 249(a)(1) ...................................................... 24 Rules F.R.E. 404(b) .............................................................................................. i, 52 Fed. R. Crim. P. 8(a) ...................................................................................... 49 Fed. R. Crim. P. 14(a) .................................................................................... 49 Fed. R. Evid. 104(b)....................................................................................... 46 Fed. R. Evid. 901(a) ................................................................................. 46, 48 iv Case 1:17-cr-00532-RBK Document 38 Filed 10/01/18 Page 6 of 63 PageID: 306 PRELIMINARY STATEMENT On September 1, 2016, Defendant Frank Nucera, Jr. unlawfully assaulted an eighteen-year-old African American man, Civilian 1. Civilian 1 was in custody and handcuffed, and being escorted by two officers out of a hotel to a waiting police cruiser, when Nucera, who at that time was chief of the Bordentown Township Police Department (“BTPD”), approached Civilian 1 from behind and slammed his head into a doorjamb, causing bodily injury to Civilian 1. Nucera’s assault of Civilian 1 was not only an unwarranted and illegal deprivation of Civilian 1’s constitutional rights, it was also motivated by an intense racial animus. Within hours after the assault, a subordinate officer, BTPD Sgt. Nathan Roohr, surreptitiously recorded Nucera at the police station using racist and offensive language regarding Civilian 1 and other African Americans present at the time of the arrest. Nucera now seeks dismissal of the Indictment, Crim. No. 17-532 (RBK), charging him with a federal hate crime, deprivation of rights under color of law, and making false statements to the FBI, on the grounds that the FBI supposedly destroyed evidence that could somehow exculpate him of these offenses. The FBI did no such thing, but rather acted in good faith to preserve all evidence in this matter as soon as they obtained it. Barring dismissal, Nucera asks that this Court waste judicial resources and prejudice the government by bifurcating the trial in this matter, so that the Jury need not hear the relevant, hateful language Nucera used to describe the victim and other African Americans before deciding whether Nucera is guilty of false statements and deprivation of rights under color of law. Nucera, who received voluminous discovery in this matter both at the time of arraignment and within weeks thereafter, ahead of the timelines set forth in the Court’s scheduling order, also needlessly requests that this Court conduct a Starks 1 Case 1:17-cr-00532-RBK Document 38 Filed 10/01/18 Page 7 of 63 PageID: 307 hearing and instruct the government to comply with its discovery obligations. Nucera’s allegations are meritless and moot. They do not entitle him to relief. STATEMENT OF FACTS Defendant Frank Nucera, Jr. had been chief of the Bordentown Township Police Department (“BTPD”) for some time when, in or around 2009-2010, he assumed the additional role of township business administrator. In that capacity, he not only oversaw all BTPD operations, he also oversaw personnel matters for all sworn and non-sworn township employees. He was in charge of all hiring, firing and paychecks for the township (Government’s Appendix (“GA”) at GA001, GA006). 1 The rank and file police officers under Nucera’s supervision became increasingly concerned about Nucera’s demeanor and behavior during the years that followed. Nucera regularly subjected the officers under his command to “rants of profanity, demeaning comments, brow beating, and yelling.” GA012. Nucera not only habitually belittled the officers in his employ, but also demeaned civilians, and therefore tended to escalate, rather than deescalate, interactions between police and civilians when he responded to calls. GA012, GA016-17, GA039-40, GA043, GA047. The Government’s Appendix consists of reports documenting FBI witness interactions and interviews, copies of attachments thereto, such as documents received from witnesses, and draft transcripts of relevant recordings. 1 2 Case 1:17-cr-00532-RBK Document 38 Filed 10/01/18 Page 8 of 63 PageID: 308 In the course of performing his duties, Nucera made comments that evinced his reliance on offensive racial stereotypes to guide his allocation of police resources, such as his insistence that police dogs were necessary when BTPD provided security for local high school basketball games when Bordentown Regional High School’s opposing team was predominantly black. GA018, GA044, GA040. And Nucera used racial slurs and other derogatory terms to refer to minorities while he was on duty and communicating with the police officers under his command. GA018 (using “nigger” and “moulinyan” to refer to black people, “towel head” to refer to people of Indian/Southeast Asian descent, “spics” in reference to Latinos, and “faggot” in reference to gay people); GA043 (Nucera talking about “fucking Mexicans” in reference to a Latino driver, wanting to get rid of “sandniggers,” by which the listener understood him to mean people of middle eastern descent, and having used the words “nigger” and “moulinyan” in reference to black people); GA052 (using the terms “mulignans” and “nigger”); GA059 (describing Nucera’s use of racial slurs such as “muli,” “nigger” and “sand nigger”). While some officer concerns were of a more mundane variety (see GA067, GA073, and GA076 (officers explaining that Nucera frequently seemed overly focused on the number of traffic tickets each officer wrote because it generated money for the township, and that Nucera did not, in their view, assign overtime jobs fairly)), whatever the issue, officers feared bringing it to Nucera directly, and did not feel safe reporting his conduct to local political or law enforcement authorities. Nucera had a reputation among the officers in his department for 3 Case 1:17-cr-00532-RBK Document 38 Filed 10/01/18 Page 9 of 63 PageID: 309 retaliating against subordinates who attempted to complain about any aspect of his conduct or department management, and officers believed their jobs, or even their careers in law enforcement, were in jeopardy should they speak up. Moreover, because Nucera was not only police chief but also the township business administrator, officers feared that there was no one to whom they could report their concerns who could shield them from retaliation. GA011 (officer describing working under Nucera as paranoia inducing because Nucera “had gotten rid of several officers”); GA045 (officer never reported Nucera’s misconduct because of his perception that Nucera ran “the entire town”); GA018 (officer “petrified of” Nucera and believed Nucera “had all the power” and “held all the cards”); GA040 (officer “was more scared of dealing with Frank Nucera than arresting a guy with a weapon”); GA059 (“You don’t cross the chief . . . . He has ended people’s careers.”); GA080 (“he (Chief Nucera) will keep coming for you until he annihilates you.”) 2 BTPD Officers Start Documenting and Recording Nucera’s Conduct It was in this environment that a number of different BTPD officers started documenting various interactions with Nucera. As early as 2009, BTPD Officer Erich Hess began taking written notes on incidents involving Nucera’s The government does not take any position as to the truth or falsity of these allegations of Nucera’s retaliation against BTPD officers. Rather, the government includes them here to demonstrate the fearful mindset of the officers working under Nucera in the BTPD during the years leading up to the events alleged in the Indictment. The government’s aim is to provide useful context for the creation of various recordings of Nucera by his subordinates, including the recordings created by BTPD Sgt. Nathan Roohr, which were described in the Indictment, and which Nucera now asks this Court to suppress. 2 4 Case 1:17-cr-00532-RBK Document 38 Filed 10/01/18 Page 10 of 63 PageID: 310 management of the department that struck Hess as improper or inappropriate. GA013. In December of 2014, Hess began using his cell phone to record conversations with Nucera concerning administration of the department. Id. But he would not remain alone in doing so. By early 2017, when the FBI conducted interviews with numerous members of the BTPD, ten BTPD officers stated that they had used either their cell phones or small digital recording devices to record interactions with Nucera – or had otherwise attempted to document with written notes, computer screenshots or emails various interactions with Nucera – over the preceding approximately two-year period. Some officers stated that they started recording Nucera as a result of a joint determination to do so made during the fall of 2016. These officers feared Nucera, disliked the conditions under which they worked, and felt the need to somehow protect themselves from Nucera. See FBI interview reports at GA089, GA072-73, GA040, GA066, GA093, GA013, GA096, GA099, GA105, and GA060. At that time, the entire BTPD consisted of twenty-three officers, including Nucera himself, meaning that nearly half the officers working under Nucera were disturbed enough by his behavior that they took the extraordinary measure of recording their own chief, well before the FBI began the criminal investigation that lead to Nucera’s indictment. BTPD Sgt. Nathan Roohr was among the officers who began recording interactions with Nucera prior to the FBI investigation. Sgt. Roohr would later recall that he first decided to record Nucera sometime during the fall of 2015, and believed that it might have been his friend and fellow BTPD officer James 5 Case 1:17-cr-00532-RBK Document 38 Filed 10/01/18 Page 11 of 63 PageID: 311 Chiariello that gave Sgt. Roohr the idea to start recording Nucera. Sgt. Roohr recalled that in or around the fall of 2015, Nucera’s “demeanor and behavior [were] escalating.” GA106. Sgt. Roohr feared that if he tried to report Nucera’s behavior without some type of hard evidence, such as an audio recording, to substantiate his allegations, no one would believe him. GA107. This recollection is corroborated by Officer Chiariello, who later told the FBI that sometime in 2015 he encouraged Sgt. Roohr to start recording his conversations with Nucera. GA067. Sgt. Roohr would later turn over 81 recordings to the FBI, the earliest of which appears to have been created on September 11, 2015, judging by the file name, “20150911 144636”. US000001 at audio file 20150911 144636. 3 This first recording captures Sgt. Roohr talking to Nucera over police radio, as well as stretches of empty air and background noise, and does not capture anything remarkable or out of the ordinary. The next recording, generated well over a month later, on October 28, 2015, captures Sgt. Roohr and Nucera out on a police call together where, again, nothing extraordinary appears to have occurred. US000001 at audio file 20151028 160649. On November 16, 2015, Sgt. Roohr had a disturbing encounter with Nucera, which he would later tell the FBI spurred him to become more diligent in capturing his interactions with Nucera on his cell phone. The day before, an When referring to relevant audio files, the government will cite to the electronic folder and file name as produced to the defense in discovery. The government has submitted a disk containing relevant recordings to the Court. The folder and file names on the Court’s disk are the same as those produced to the defense and referred to in the text. 3 6 Case 1:17-cr-00532-RBK Document 38 Filed 10/01/18 Page 12 of 63 PageID: 312 African American man was arrested for disorderly conduct after an incident in which he yelled at police officers at BTPD headquarters. On the morning of November 16, 2015, Nucera became aware that a police vehicle had a flat tire, and suspected the prior day’s arrestee of having slashed the tire. While Nucera and Sgt. Roohr were standing together behind the police station, Nucera made the following statements: I wish that nigger would come back from Trenton and give me a reason to put my hands on him, I’m tired of ‘em. These niggers are like ISIS, they have no value. They should line them all up and mow ‘em down. I’d like to be on the firing squad, I could do it. I used to think about if I could shoot someone or not, I could do it, I’m tired of it. Sgt. Roohr was troubled by Nucera’s comments, and also disheartened when he realized that he had not activated his cell phone audio recorder prior to the encounter. He immediately wrote down Nucera’s statements in a notepad. GA106 (FBI interview report); GA109 (Roohr 11/16/15 handwritten notes). Sgt. Roohr also told Officer Chiariello about Nucera’s comments close in time to when they ocurred. GA065 (FBI report of Chiariello interview). Over the next approximately nine months, up to and and including August 31, 2016, Sgt. Roohr continued to record interactions with Nucera, both in his notepad, and, when possible, via his cell phone audio recorder. On April 30, 2016, for example, Sgt. Roohr and Nucera were both providing security at a public event. Sgt. Roohr had his cell phone recorder activated that day, and captured approximately three hours of audio files, some of which was dead air, some of which was background noise or interactions with the 7 Case 1:17-cr-00532-RBK Document 38 Filed 10/01/18 Page 13 of 63 PageID: 313 public, and portions of which captured conversations with Nucera. 4 US000001 at audio files 20160430 123531, 20160430 141125, and 20160430 153833. That day, Nucera made statements expressing his belief that police dogs could, and should, be used for the purpose of intimidating African Americans, whom he called “fucking mullies.” GA125-28, quoted remark at GA126 (draft transcript (disclosed to the defense as US000037) of recording clip (disclosed as US000036) from the longer audio file 20160430 153833 referenced above). Although the fact that Sgt. Roohr had made recordings of Nucera for nearly a year at this point, from September 11, 2015 through August 31, 2016, would later be relevant to a federal criminal investigation, with the noteable exception of Nucera’s comments condoning the discriminatory use of police dogs, the content of the recordings would not be. Nor is there any evidence to suggest that Sgt. Roohr – or any of the other BTPD officers also recording Nucera during this time – had any idea their recordings would one day be turned over to the FBI. Long stretches of irrelevant content are representative of the majority of the recordings that Sgt. Roohr made, as his practice was to switch on his cell phone’s recording mechanism whenever he anticipated he might be in a position to capture interactions with Nucera, and simply leave the recorder on for hours at a time. 4 8 Case 1:17-cr-00532-RBK Document 38 Filed 10/01/18 Page 14 of 63 PageID: 314 The September 1, 2016 Assault of the Victim 5 On the evening of September 1, 2016, BTPD Det. Sgt. Salvatore Guido and BTPD Lt. Shawn Mount responded to a call for help at the Bordentown Ramada hotel. The hotel manager had called police to report that two young individuals had failed to pay for a hotel room the night before and had been swimming in the hotel pool that afternoon. The two individuals were the victim, an eighteen-year-old African American male referred to in the Indictment as Civilian 1, and a sixteen-year-old African American female referred to in the Indictment as Civilian 2. Shortly after Lt. Mount and Det. Sgt. Guido arrived at the Ramada and confronted Civilian 1 and Civilian 2 with the allegation that they had failed to pay for the hotel room, the interaction escalated into a physical struggle in a second-floor hallway. Both Civilian 1 and Civilian 2 resisted arrest. During the struggle, one officer deployed his pepper spray on Civilian 1, and the officer called for backup. In response, a number of other on-duty police officers, including Nucera and Sgt. Roohr, went to the Ramada. With the additional police assistance, Civilian 1 and Civilian 2 were subdued and handcuffed. Several minutes after Civilian 1 had been handcuffed, officers stood him up and began guiding him towards the stairwell. Civilian 1 briefly stopped Although the account of events described in this section are supported by FBI reports as well as other evidence, the government will not cite to those reports and other pieces of evidence here, as these facts go to the heart of the expected testimony and evidence to be introduced at trial, and while in dispute, are not the direct subject of the arguments and claims for relief presented in the defendant’s pretrial motions. 5 9 Case 1:17-cr-00532-RBK Document 38 Filed 10/01/18 Page 15 of 63 PageID: 315 walking as he reached the area in front of the stairwell doorway and began shouting at the officers. He was not kicking or struggling. Det. Sgt. Guido placed his hand on Civilian 1’s back and began to push him forward to encourage him to keep walking. At that moment, Nucera approached Det. Sgt. Guido and Civilian 1 from behind, grabbed Civilian 1’s head and slammed it into the metal doorjamb separating the hallway from the stairwell. Civilian 1’s head made a loud thud as it hit the doorjamb. After the assault by Nucera, officers continued to escort Civilian 1 down the stairs, out of the hotel, and into a patrol vehicle. Civilian 1 was then transported to the BTPD station for processing. The September 1, 2016 Audio Recordings of Nucera and of the Victim Sgt. Roohr also headed back to the station in his police vehicle. Sgt. Roohr was shocked and disturbed by Nucera’s assault on Civilian 1. Knowing that he might have interactions with Nucera inside the station, Sgt. Roohr activated the audio recorder on his cell phone and put the phone on his person before heading into the station. Once inside, Sgt. Roohr captured audio central to the color of law, hate crime, and false statements charges contained in the Indictment. While at the BTPD station, Civilian 1 complained of head pain and a possible concussion, amongst other injuries, and requested medical attention. Sgt. Roohr captured this request surreptitiously using his cell phone. US000026 (audio recording); GA129-32 (draft transcript disclosed to the defense as US000027). 10 Case 1:17-cr-00532-RBK Document 38 Filed 10/01/18 Page 16 of 63 PageID: 316 After Civilian 1’s request for medical attention, while Civilian 1 was still inside BTPD headquarters, Nucera was discussing Civilian 1’s arrest with Sgt. Roohr, and made the following statements about Civilian 1, Civilian 2, and African Americans in general, all of which were captured on Sgt. Roohr’s cell phone: I’m fucking tired of them man. I’ll tell you what, it’s gonna get to the point where I could shoot one of these motherfuckers. And that nigger bitch lady [a reference to Civilian 2’s aunt], she almost got it. “Get back.” . . . aunt. Well, I said “get back.” “Don’t tell me what to do.” I said, “I’m telling you, you’re getting close to getting thrown on the fucking floor too. Get back.” “That’s my niece.” I said, “I don’t care who the fuck it is. Get fucking back! Don’t yell at me, one more time.” Fucking nipple hanging bitch. I’m so tired of them man. US000032 (audio recording); GA134 (draft transcript disclosed to the defense as US000033). Shortly thereafter, Nucera engaged in the following exchange with Sgt. Roohr: Nucera: These fucking people. Where are they from? Roohr: Trenton, I think. Nucera: They’re from Trenton. Roohr: I think so. Nucera: Stay the fuck out of Bordentown. Now they can go home and tell them, you can go to 11 Case 1:17-cr-00532-RBK Document 38 Filed 10/01/18 Page 17 of 63 PageID: 317 Bordentown, they’ll fuck, I just, you know what? It would have been nice if that fucking dog could have come up. ‘Cause they would have stopped, put down. … That dog, that dog will stop anything right then and there [makes dog noises]. I’m telling you. You’d have seen two fucking niggers stop dead in their tracks. I love that when they do that. I just love that. US000032 (audio recording); GA136 (draft transcript disclosed to the defense as US000033). Later that evening, Nucera called Civilian 1 a “[f]ucking little, fucking nigger.” US000034 (audio recording); GA141 (draft transcript disclosed to the defense as US000035). Sgt. Roohr’s Report of Nucera’s Conduct to BTPD Internal Affairs Sgt. Roohr recorded Nucera’s above September 1, 2016 statements of his own accord, using his personal cell phone, before any interaction with the FBI. Indeed, in the wake of the incident, before going to the FBI, Roohr approached the head of Internal Affairs for BTPD, Captain Brian Pesce. Within approximately two weeks of the incident, Sgt. Roohr approached Cpt. Pesce and reported that Nucera had used excessive force by pushing a male suspect’s head into a doorjamb, and that the suspect had later complained of a concussion. Sgt. Roohr also told Cpt. Pesce that he had been recording conversations with Nucera, that Nucera had used racial slurs on these recordings, and had previously made comments about wanting to sic dogs on African Americans and feeling capable of shooting African Americans. 12 Case 1:17-cr-00532-RBK Document 38 Filed 10/01/18 Page 18 of 63 PageID: 318 Cpt. Pesce suggested that Sgt. Roohr file a written complaint and include all specific allegations of misconduct of which Sgt. Roohr was aware. GA103, GA017 (FBI interview reports). Sgt. Roohr then submitted a written document to Cpt. Pesce, which included not only Sgt. Roohr’s account of Nucera’s September 1, 2016 assault on Civilian 1 at the Ramada hotel, but also other incidents in which Nucera had used racial slurs, and otherwise engaged in behavior that had created what Sgt. Roohr and Cpt. Pesce came to refer to as a hostile work environment. GA036 (FBI interview report), GA029 (written complaint provided to the FBI by Cpt. Pesce). Cpt. Pesce used Sgt. Roohr’s written submission to generate his own formal complaint of misconduct, in which he included both material supplied to him by Sgt. Roohr, as well as material he gleaned from other officers. It took several weeks for Cpt. Pesce and Sgt. Roohr to finish drafting the complaint. GA036, GA023-34. Cpt. Pesce felt that the complaint needed to be well supported and carefully drafted, due to the gravity of lodging such complaints about the sitting police chief and township administrator, and due to Cpt. Pesce’s perception that previous complaints lodged against Nucera with local authorities never led to any punishment of Nucera or change in his behavior. Instead, in Pesce’s view, such past complaints had become fodder for Nucera’s retaliation against the reporting officers. GA017-19. Cpt. Pesce intended to present the complaint to the Burlington County Prosecutor’s Office at a meeting scheduled for November 18, 2016. If that failed to generate appropriate action, Pesce intended to present the information 13 Case 1:17-cr-00532-RBK Document 38 Filed 10/01/18 Page 19 of 63 PageID: 319 in the complaint to the Bordentown Township Committee. Cpt. Pesce had no thought of contacting the FBI, and contact with the FBI was not the plan that he and Sgt. Roohr discussed. GA036. Thus, it is quite clear that as of mid-September of 2016, the FBI was still uninvolved. Neither Sgt. Roohr nor Cpt. Pesce, to whom Sgt. Roohr had reported Nucera’s conduct, viewed themselves as involved in a federal criminal investigation, as there was no such investigation under way at that time. They considered it a workplace and political matter, a question of ousting an unfit and racist boss from his dual perch as police chief and township business administrator. During this same time period, Sgt. Roohr continued to capture recordings of Nucera on his cell phone, making eighteen recordings between September 6 and September 28, 2018. US000001 at audio files 20160906 055953 through 20160928 173106. With regard to this batch of recordings, too, although the fact that Sgt. Roohr was recording is significant, the content of these recordings would not later become central to the subsequent FBI investigation of Nucera or central to the government’s case against Nucera. Sgt. Roohr’s Contact with the FBI At some point in late September or early October, Sgt. Roorh placed a phone call to an old Bordentown friend and current FBI Special Agent in the Bureau’s Philadelphia Division, Jacob Archer. While Sgt. Roohr could not later recall the exact date of this call, the call clearly was placed after September 1, 2016, as the impetus for the call was Sgt. Roohr’s having witnessed Nucera’s 14 Case 1:17-cr-00532-RBK Document 38 Filed 10/01/18 Page 20 of 63 PageID: 320 assault on Civilian 1. Sgt. Roohr came to Special Agent Archer’s home, and relayed the events of September 1, 2016 to Special Agent Archer. GA111. Nucera suggests that Special Agent Archer was aware of the fact that Sgt. Roohr was making recordings of Nucera by sometime in 2015 and that, as a result, Archer, as an FBI agent, had a duty to obtain and preserve all of Sgt. Roohr’s recordings (Defense Brief at 50). He is wrong on both counts. As an initial matter, the evidence Nucera cites in support of his contention that Special Agent Archer was aware that Roohr was recording Nucera sometime in 2015 – an FBI report documenting an interview with BTPD officer James Chiariello (GA064-71) – says no such thing. Rather, the Chiariello report provides Chiariello’s speculation concerning two separate issues, which Nucera then conflates and mischaracterizes in order to support his argument. First, according to the report, Chiariello indicated that he, Chiariello, “told Sergeant Roohr in 2015 that he [Roohr] should start recording his conversations with Chief Nucera.” GA067. Second, Chiariello provided the FBI with his own hunch that Sgt. Roohr “may have talked with Jake Archer, a former Burlington Township Police Officer and current FBI Special Agent, about issues with Chief Nucera.” GA067. The Chiariello report does not indicate that Chiariello knew for certain that Sgt. Roohr had spoken with Special Agent Archer about Nucera. Nor does the report indicate that Chiariello offered any speculation as to the time frame for any discussions that Sgt. Roohr may have had with Special Agent Archer concerning Nucera. Moreover, this Court need not rely on Nucera’s mischaracterizations of 15 Case 1:17-cr-00532-RBK Document 38 Filed 10/01/18 Page 21 of 63 PageID: 321 Chiariello’s speculation. We know the approximate timeframe for Roohr’s conversation with Special Agent Archer about Nucera. As outlined above, those conversations clearly were initiated sometime after September 1, 2016. Additionally, Nucera’s contention that if Special Agent Archer knew that Sgt. Roohr was recording Nucera as early as 2015, Special Agent Archer would have had an obligation to obtain and collect those recordings is nonsense. The events that triggered a federal investigation occurred in September of 2016. Even if Special Agent Archer were aware as early as 2015 that Sgt. Roohr was recording Nucera – which, again, is a contention unsupported by the evidence at hand – there would have been no way for Archer to anticipate that the recordings would one day become relevant to a federal criminal investigation. In 2015, when Sgt. Roohr and other BTPD officers started recording Nucera, they believed they were safeguarding themselves from possible future unfair working conditions or retaliation, not collecting evidence of an as-yet uncommitted federal crime. The FBI becomes aware of information that leads to criminal investigations in myriad ways and through myriad sources. In this particular case, Special Agent Archer became the conduit between Roohr and the New Jersey FBI Special Agent who initiated the FBI’s investigation into Nucera’s assault on Civilian 1, Special Agent Arthur Durrant. Before joining the FBI, Special Agent Archer was a member of the Bordentown City Police Department (GA111), a neighboring department to the BTPD. In that context, he knew and became friendly with many BTPD officers, 16 Case 1:17-cr-00532-RBK Document 38 Filed 10/01/18 Page 22 of 63 PageID: 322 including Sgt. Roohr. In 2007 and 2008, Archer, who was then working in Bordentown and had not yet joined the FBI, provided the FBI with information concerning Nucera, which Special Agent Durrant investigated at that time. That investigation was closed in 2008 without the filing of any charges. But as a result of Archer’s time as a local law enforcement officer in Bordentown City, and his interaction with the FBI in 2007-2008, Archer had contacts not only with local BTPD police officers like Sgt. Roohr, but also with Special Agent Durrant. Special Agent Archer did not launch an investigation into Nucera’s conduct. Nor would it have made sense for him to do so, as he was assigned to the Philadelphia Division, and the conduct described by Roohr took place in Bordentown Township, New Jersey. Instead, Special Agent Archer told Roohr that he would put him in contact with Special Agent Durrant, who at that time was unavailable as a result of pressing matters in an unrelated investigation. Special Agent Archer relayed to Sgt. Roohr that Special Agent Durrant would reach out to Sgt. Roohr when he was able to do so. GA111. From October 1, 2016 through November 16, 2016, Sgt. Roohr used his cell phone to make numerous recordings, most of which capture conversations with Nucera. US000001 at audio files 20161001 083947 through 20161116 120034. The content of these recordings also is not especially pertinent to the government’s case against Nucera. 6 On or about October 5, 2016, by happenstance, FBI Special Agent Vernon Addison, who would later learn of and be assigned to the investigation 6 17 Case 1:17-cr-00532-RBK Document 38 Filed 10/01/18 Page 23 of 63 PageID: 323 On November 17, 2016, Sgt. Roohr met for the first time with FBI Special Agent Durrant. Sgt. Roohr reported Nucera’s September 1, 2016 assault on Civilian 1, as well as Nucera’s use of racial slurs to describe Civilian 1 and other African Americans on other occasions. Sgt. Roohr also reported Nucera’s prior statements about feeling capable of shooting African Americans. GA100103. After Special Agent Durrant’s initial meeting with Sgt. Roohr, the FBI contacted Cpt. Pesce, and asked that Pesce hold off on presenting his and Roohr’s complaint to the Burlington County Prosecutor’s Office. Cpt. Pesce therefore canceled the November 18, 2016 meeting he had previously scheduled with the Burlington County Prosecutor’s Office. GA036-37. From November 18 through November 22, 2016, Sgt. Roohr used his cell phone to record four conversations with Nucera, as well as three other conversations in which not all participants are identifiable, so Nucera may or may not have been present and recorded. US000001 at audio files 20161118 210913 through 20161122 121533. The contents of these recordings also are not especially pertinent to the government’s case against Nucera. Sgt. Roohr was not instructed by the FBI to make these recordings, and the FBI had no advance knowledge that he would do so. into Nucera’s assault of Civilian 1, once that investigation actually came to be, met with and interviewed Civilian 1 in connection with an entirely unrelated matter. The report documenting that interview was provided to the defense and is included in the Government’s Appendix. A review of that report makes clear that Special Agent Addison and Civilian 1 did not discuss the events of September 1, 2016 when they met the following month to discuss matters relating to a wholly separate investigation. GA113-14. 18 Case 1:17-cr-00532-RBK Document 38 Filed 10/01/18 Page 24 of 63 PageID: 324 On the morning of November 23, 2016, Sgt. Roohr used his cell phone to record a conversation with Nucera. Nothing especially noteworthy or out of the ordinary is captured on this recording, in which Nucera invited Sgt. Roohr and another officer to stop by his home for dinner. US000001 at audio file 20161123 092951. Sgt. Roohr was not instructed by the FBI to make this recording, and the FBI had no advance knowledge that he would do so. At approximately 1:00 p.m. on November 23, 2016, Sgt. Roohr met with Special Agent Durrant for the second time, and provided Special Agent Durrant with a thumb drive containing five previously recorded conversations, captured in April and September of 2016. 7 These were the first recordings that Sgt. Roohr provided to the FBI, and included Nucera’s April 30, 2016 statements expressing his belief that police dogs should be used to intimidate African Americans, as well as Nucera’s racist statements about Civilian 1 and African Americans more generally on the evening of the assault. Sgt. Roohr explained to Special Agent Durrant that he had used his cell phone to record conversations between himself and other BTPD officers, including Nucera, prior to having any meetings with the FBI. Sgt. Roohr also explained that two of the conversations were recorded on the day of Nucera’s assault on Civilian 1. Special Agent Durrant subsequently downloaded all of the recordings on Sgt. Roohr’s thumb drive onto a disk (saved as “1B-1”) to preserve them and returned the thumb drive to Sgt. Roohr. GA115-16. US000012 at audio files 20160430 123531; 20160430 141125; 20160430 153833; 20160901 192009; and 20160901 212518. 7 19 Case 1:17-cr-00532-RBK Document 38 Filed 10/01/18 Page 25 of 63 PageID: 325 Special Agent Durrant discussed the information he had learned from Sgt. Roohr with Special Agent Vernon Addison and their supervisors, as well as the United States Attorney’s Office, and both the FBI and the United Stated Attorney’s Office agreed to open the investigation that lead to the instant federal charges against Nucera. GA103-04. Sgt. Roohr continued to use his personal cell phone to record conversations with Nucera in the weeks that followed. On December 1 and 3, 2016, Sgt. Roohr recorded five interactions with Nucera, the contents of which are not pertinent to the government’s case. US000001 at audio files 20161201 080732, 20161201 102208, 20161203 102824, 20161203 110607, 20161203 173857. Sgt. Roohr was not instructed by the FBI to make these recordings, and the FBI had no advance knowledge that he would do so. At approximately 6:35 a.m. on December 12, 2016, however, assigned Special Agents Addison and Durrant met with Sgt. Roohr and provided him with an FBI recording device, “1D-1,” which the agents attempted to activate at that time. The aim was to have Sgt. Roohr engage in conversations with Nucera and Sgt. Guido about Civilian 1’s arrest using the ruse that Sgt. Roohr was concerned someone might file a civil lawsuit as a result of that evening’s events, and thereby elicit conversation about Nucera’s conduct from both Sgt. Guido and Nucera. The agents were unaware, at that time, that recording device 1D-1 had failed to activate. Sgt. Roohr also activated the recorder on his cell phone, which captured the conversations that FBI recording device 1D-1 did not. Using his cell phone, Sgt. Roohr captured conversations between 20 Case 1:17-cr-00532-RBK Document 38 Filed 10/01/18 Page 26 of 63 PageID: 326 himself and Sgt. Guido, as well as a conversation with Nucera. In these conversations, Sgt. Roohr brought up the idea of a possible civil lawsuit against the department with both Sgt. Guido and Nucera. US000001 at audio file 20161212 064652. At approximately 2:45 p.m. on December 12, 2016, Sgt. Roohr again met with the FBI case agents, who took custody of recording device 1D-1 and attempted to deactivate it. The contents of the recording produced by 1D-1 seem to indicate that the device actually was accidentally activated at that time, and subsequently captured non-pertinent noise and muffled conversations unrelated to the investigation. 8 At that time, case agents activated a second FBI recording device, “1D-2,” and provided it to Sgt. Roohr. Sgt. Roohr, wearing FBI recording device 1D-2, captured a series of mundane office interactions, a response to a routine police call, and solo driving time, none of which are especially relevant to the government’s case against Nucera. US000015. As he had done earlier that day, Sgt. Roohr also activated his cell phone during this time period, and captured overlapping insignificant material with his cell phone. US000001 at audio files 20161212 150814 and 20161212 162733. At approximately 7:21 p.m. on December 12, 2016, Special Agent Addison met with Sgt. Roohr, took custody of FBI recording device 1D-2, and deactivated it. GA117. In an abundance of caution, the contents of 1D-1 nonetheless were produced in discovery, along with the FBI report documenting the interaction, collectively marked as US000014. 8 21 Case 1:17-cr-00532-RBK Document 38 Filed 10/01/18 Page 27 of 63 PageID: 327 At approximately 3:00 p.m. the following day, December 13, 2016, Sgt. Roohr again met with Special Agents Addison and Durrant. Special Agent Addison activated three FBI recording devices, “1D-3,” “1D-4” and “1D-5,” and provided them to Sgt. Roohr. Sgt. Roohr then recorded a number of conversations with BTPD personnel, including Nucera, concerning the September 1, 2016 Ramada hotel incident using these simultaneously recording devices. US000016, US000017, and US000018. Among the conversations Sgt. Roohr captured on these FBI devices was one in which Sgt. Roohr again used the ruse of pretending to fear an imaginary lawsuit to elicit statements from Nucera concerning Civilian 1’s arrest. Nucera attempted to defend the excessive use of force against Civilian 1 by arguing that numerous police officers had to respond to the Ramada “‘cause of six unruly fucking niggers.” US000038 (audio recording); GA145 (draft transcript disclosed to the defense as US000039). As Sgt. Roohr had done the day before, he also turned on the audio recorder on his personal cell phone on December 13, 2016, and captured approximately two hours and 48 minutes of audio. This audio file includes conversations with BTPD personnel concerning the Ramada incident and other matters, as well as empty air and background noises. US000001 at audio file 20161213 153810. At approximately 7:28 p.m. on December 13, 2016, Sgt. Roohr again met with Special Agent Addison, who took custody of FBI recording devices 1D-3, 1D-4 and 1D-5, and deactivated them. At that time, Sgt. Roohr also gave 22 Case 1:17-cr-00532-RBK Document 38 Filed 10/01/18 Page 28 of 63 PageID: 328 Special Agent Addison a thumb drive containing the all of the audio files Sgt. Roohr had recorded via his personal cell phone on December 12 and 13. GA118-19; US000013 at audio files 20161212 064652, 20161212 150814, 20161212 162733, and 20161213 153810. These recordings are the last recordings Roohr recorded on his personal cell phone of which the government is aware. On December 22, 2016 at approximately 6:45 a.m., Special Agents Addison and Durrant met with Sgt. Roohr, activated FBI recording devices 1D7 and 1D-8, and provided them to Sgt. Roohr. Throughout the day, Sgt. Roohr had a series of conversations with various BTPD officers, including Nucera, about Civilian 1’s arrest. On this occasion, Sgt. Roohr did not capture any audio using his personal cell phone. GA122-24. Meanwhile, at approximately 7:07 a.m. on December 22, 2016, Special Agents Addison and Durrant conducted an interview with Nucera, which they surreptitiously recorded. In the interview, Nucera emphatically denied ever touching Civilian 1 during the September 1, 2016 Ramada hotel arrest. GA147-53 (Draft transcripts provided to the defense at US000043 and US000045). At approximately 8:19 p.m. The case agents again met with Sgt. Roohr, took custody of devices 1D-7 and 1D-8, and deactivated them. GA122. On January 11, 2017, Sgt. Roohr was served with a federal grand jury subpoena requesting, inter alia, “all audio and/or video recordings in his possession in which Bordentown Township Police Department personnel have 23 Case 1:17-cr-00532-RBK Document 38 Filed 10/01/18 Page 29 of 63 PageID: 329 been recorded, whether recorded inside the Bordentown Township Police Department headquarters or elsewhere.” GA154. Sgt. Roohr came to the FBI’s Trenton office with his personal laptop computer. At that time, he met with the case agents and Special Agent Addison assisted Sgt. Roohr in downloading 81 audio files from Sgt. Roohr’s personal computer onto an FBI temporary storage device. Sgt. Roohr advised the case agents that prior to contacting the FBI, he had deleted additional audio recordings he made after reviewing the recordings and determining that nothing relevant was captured. Special Agent Addison saved the 81 audio files voluntarily recorded by Sgt. Roohr to a disk marked 1A-29, the complete contents of which were later disclosed to the defense as US000001. GA105 (FBI report of 1/11/17 meeting with Sgt. Roohr). Some of these 81 audio files are duplicative of files Sgt. Roohr had previously provided to the FBI, as Sgt. Roohr had provided select audio files to the FBI on prior occasions, starting with the five recordings he gave to Special Agent Durrant during their November 23, 2016 meeting. But the 81 files Sgt. Roohr gave to the FBI on January 11, 2017 represent the universe of audio files Sgt. Roohr’s provided to the FBI that he previously had recorded on his cell phone. The government’s investigation continued in the months that followed. On October 31, 2017, the government filed a criminal complaint charging Frank Nucera, Jr. with violations of 18 United States Code Sections 249(a)(1) (willfully causing bodily injury to Civilian 1 because of Civilian 1’s race – the hate crime charge), and 242 (deprivation of rights under color of law). Nucera 24 Case 1:17-cr-00532-RBK Document 38 Filed 10/01/18 Page 30 of 63 PageID: 330 was arrested on November 1, 2017, appeared before the Honorable Ann Marie Donio, and was released on bail. On December 7, 2017, a federal grand jury indicted Nucera on the above charges, as well as one count of violating 18 United States Code Section 1001(a)(2) (false statements). On December 21, 2017, Nucera appeared before this Court for arraignment, at which time the government provided early discovery. Further discovery was provided on January 3, 2018, at which time, the government requested reciprocal discovery. On August 21, 2018, Nucera filed pretrial motions seeking, inter alia, dismissal of the Indictment, an evidentiary hearing, and bifurcation of the hate crimes charge at trial. The government opposes Nucera’s motions, and now responds. ARGUMENT I. Deletion of audio recordings by a witness who was not acting on behalf of the government, before any interaction with the government, is not grounds for dismissal of the Indictment. Nucera first argues that he is entitled to dismissal of the Indictment because the government supposedly acted in bad faith in failing to preserve and deliver to Nucera potentially useful evidence. Specifically, Nucera argues that the United States Attorney’s Office and FBI case agents should have anticipated that BTPD police Sgt. Nathan Roohr would record Nucera of his own accord on his personal cell phone before ever meeting with the FBI, and also divine that before ever meeting with the FBI, Sgt. Roohr would review the recordings he made and delete some. The loss or destruction of recordings by 25 Case 1:17-cr-00532-RBK Document 38 Filed 10/01/18 Page 31 of 63 PageID: 331 a third party acting outside the government’s control is not grounds for dismissal of an Indictment, even if that same individual has, at times, acted as an informant and made other recordings at the government’s behest. United States v. Rahman, et al., 189 F.3d 88, 139-40 (2d Cir. 1999). Perhaps recognizing that the evidence of record does not support his claim, Nucera next invites the Court to hold an evidentiary hearing, after which, he argues, a sufficient basis will exist to warrant dismissal. Nucera’s speculation does not entitle him to an evidentiary hearing, as there can be no due process violation based on the actions of a private citizen. The issues Nucera raises are appropriate fodder for cross-examination of the government’s witnesses at trial, where the jury may then consider them in evaluating the weight of the evidence. As an initial matter, Nucera argues in passing that the deletion of audio files here requires dismissal of the Indictment under Brady v. Maryland, 373 U.S. 83 (1963), and its progeny (Defense Brief at 46). Brady is not directly applicable to this set of facts. Brady requires that the government disclose all evidence in its possession that is both material and favorable to the accused. Brady, 373 U.S. at 87 (emphasis added). Evidence is “material” if there is a reasonable probability that, had it been disclosed, the result of the proceeding would have been different. Kyles v. Whitley, 514 U.S. 419, 434-35 (1995). This standard is not met by the “mere possibility that an item of undisclosed information might have helped the defense, or might have affected the outcome of the trial.” United States v. Agurs, 427 U.S. 97, 109-10 (1976). Undisclosed 26 Case 1:17-cr-00532-RBK Document 38 Filed 10/01/18 Page 32 of 63 PageID: 332 exculpatory or impeachment evidence is not material merely because it is favorable to the defense. Instead, it must pertain to a “crucial fact,” United States v. Pelullo, 14 F.3d 881, 887 (3d Cir. 1994) or “go to the heart of the defendant’s guilt or innocence” in light of the “totality of the circumstances,” and its absence must “impair the fairness of defendant’s trial.” United States v. Hill, 976 F.2d 132, 134-35 (3d Cir. 1992). Moreover, the typical remedy for a Brady violation is a new trial, at which the suppressed evidence can be introduced, and not dismissal of an indictment, as Nucera advocates here. Though dismissal of charges is available in extreme circumstances where there was willful misconduct on the part of the prosecution. See Gov’t of Virgin Islands v. Fahie, 419 F.3d 249, 254-55 (3d Cir. 2005). Here, the government cannot turn over the evidence in question, as it was destroyed. In such circumstances, the Supreme Court’s line of cases concerning failure to preserve evidence, discussed below, is controlling. The import of the government’s destruction of evidence in its possession is addressed in several Supreme Court and Third Circuit decisions. As explained above, it was not, in fact, the government that destroyed any evidence here. But as Nucera alleges that it was, and frames his claim in this light, a review of the case law is useful. In California v. Trombetta, 467 U.S. 479 (1984), the Supreme Court considered whether the Due Process Clause requires the prosecution to preserve potentially exculpatory evidence, specifically, a breath sample taken from a suspected drunk driver. Id. at 481. The Court found that whatever duty exists “is limited to evidence that might be 27 Case 1:17-cr-00532-RBK Document 38 Filed 10/01/18 Page 33 of 63 PageID: 333 expected to play a significant role in the suspect’s defense.” Id. at 488 (footnote omitted). To meet this standard of materiality, the evidence “must both possess an exculpatory value that was apparent before the evidence was destroyed, and be of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means.” Id. at 489. The Court concluded that the breath sample was not this type of material evidence. Id. at 489-90. In Arizona v. Youngblood, 488 U.S. 51 (1988), the Supreme Court considered again “‘what might loosely be called the area of constitutionally guaranteed access to evidence.’” 488 U.S. at 55 (quoting United States v. Valenzuela-Bernal, 458 U.S. 858, 867 (1982)). The Court found that its decisions in this area “have stressed the importance for constitutional purposes of good or bad faith on the part of the Government when the claim is based on loss of evidence attributable to the Government.” 488 U.S. at 57. Even though the government in Youngblood caused the loss of evidence through negligence, the Court rejected the argument that this constituted a due process violation. Rather, the Court held, “unless a criminal defendant can show bad faith on the part of the police, failure to preserve potentially useful evidence does not constitute a denial of due process of law.” Id. at 58. The Court concluded that the prosecution’s failure to preserve a semen sample taken from a sexual assault victim was not in bad faith. Id. at 58-59. The Third Circuit applied the principles of Trombetta and Youngblood in cases that further clarify the showing needed to establish a due process 28 Case 1:17-cr-00532-RBK Document 38 Filed 10/01/18 Page 34 of 63 PageID: 334 violation. In United States v. Stevens, 935 F.2d 1380 (3d Cir. 1991), the Court considered the destruction, during testing, of a saliva sample after the district court ordered it preserved. Even though one type of test might have exonerated the defendant, the Court found no evidence of bad faith, because no one knew that it actually would have exonerated him. Id. at 1388. And in United States v. Boyd, 961 F.2d 434 (3d Cir. 1992), the Third Circuit rejected a similar claim after a urine sample, which tested positive for cocaine, was destroyed. Id. at 437. Trombetta and Youngblood, taken together and read in light of the Third Circuit’s subsequent decisions, state the principles that govern when evidence in the hands of the government has been destroyed. To prove a due process violation, the defendant first must prove that the evidence is material, as defined by Trombetta. Under Trombetta, to show materiality, the defendant must show that the evidence had apparent exculpatory value and that the defendant could not obtain comparable evidence by other means. Second, the defendant must show that the government acted in bad faith in destroying the evidence. Bad faith is shown only when the actual exculpatory value of the evidence is immediately apparent and when the evidence is destroyed with the intent of preventing the defendant from using the evidence. 9 Nucera relies upon on the Third Circuit’s decision in Government of Virgin Islands v. Testamark, 570 F.2d 1162 (3d Cir. 1978), as well as the Ninth Circuit’s decision in United States v. Loud Hawk, 628 F.2d 1139, 1152 (9th Cir. 1979). See Defense Brief at 46, 48-49. Given that Testamark and Loud Hawk both were decided before Trombetta and Youngblood, they have little relevance in defining the appropriate legal standard. In any event, both Testamark and 9 29 Case 1:17-cr-00532-RBK Document 38 Filed 10/01/18 Page 35 of 63 PageID: 335 The Third Circuit has not addressed, however, the more nuanced issue presented here: how are courts to treat instances in which evidence was lost or destroyed by a third party, acting of his own volition, who later coordinated with the government in some fashion? The Second Circuit squarely addressed this issue in United States v. Rahman, supra. In Rahman, ten defendants, including Abdel Rahman, a Muslim cleric, were charged with seditious conspiracy and other offenses arising from a wideranging conspiracy to conduct terroristic acts in New York City in the early 1990s, including providing aid to those who bombed the World Trade Center in 1993. Rahman was the leader of this conspiracy. Rahman, 189 F.3d at 10305. In 1991, during the FBI’s investigation into this group, an FBI informant, Emad Salem, began to befriend various followers of Rahman in an attempt to infiltrate the organization. Id. at 106. During this early phase of the investigation, Salem had agreed to serve only as a confidential informant for the FBI, and had not agreed to serve as a trial witness. FBI agents instructed Salem not to make any recordings. “Nonetheless, Salem surreptitiously recorded many of his conversations, using an automatic device that recorded anyone who called, including family members and others as well as members of the conspiracy.” Id. at 139. Salem made these recordings both to create a Loud Hawk held that the destruction of evidence in those cases was harmless and did not prejudice the defendants. Thus, neither is especially helpful to Nucera. 30 Case 1:17-cr-00532-RBK Document 38 Filed 10/01/18 Page 36 of 63 PageID: 336 record of his own innocence, and to record the terms of his cooperation with the FBI. Id. When Salem made the FBI aware that he had been recording conversations on his own, the agents first told him to stop. Then they backtracked, telling Salem that making his own recordings was permissible, fearing Salem would stop assisting with the investigation if they told him to stop making the recordings or turn over to the FBI all of his personal recordings. These fears were well founded. In July of 1992, agents asked Salem to record official tapes under the FBI’s direction to be used as evidence, and in reaction to this request, Salem quit the investigation. Id. After the February 1993 World Trade Center bombing, however, in the final weeks of the investigation, Salem again began working for the FBI as an informant. At that time he recorded conversations with the defendants at the FBI’s request. Salem erased some of his personal tapes (by recording over them) before eventually turning them over to the FBI. The tapes that Salem made “under formal FBI supervision during the last weeks of the investigation” were all preserved. Id. at 139-40. Two of the Rahman defendants later claimed, in allegations strikingly similar to Nucera’s instant claim, that the government encouraged Salem to make his personal recordings and further encouraged him to destroy them selectively. They speculated that the contents of the lost recordings were exculpatory, and that therefore their loss deprived the defendants of due process. Id. at 139. The Second Circuit rejected their claims, relying, in part, 31 Case 1:17-cr-00532-RBK Document 38 Filed 10/01/18 Page 37 of 63 PageID: 337 on a prior Second Circuit precedent that held that before the court could engage in the Trombetta/Youngblood analysis, “the record must first show that evidence has been lost and that this loss is ‘chargeable to the State.’” Id. at 139, quoting Colon v. Kuhlman, 865 F.2d 29, 30 (2d Cir. 1988) (doctor’s failure to preserve rape victim’s underwear not chargeable to the State, and therefore not a due process violation). Then, and only then, could the court engage in the Youngblood analysis, and “whether the loss warrants sanctions depends on the Government’s culpability for the loss and its prejudicial effect.” Rahman, 189 F.3d at 139. This sensible prerequisite is entirely consistent with Trombetta, Youngblood, and the Third Circuit’s interpretation of those cases in Stevens and Boyd. In Trombetta and Youngblood (as well as Stevens and Boyd), the evidence at issue was destroyed or lost by agents of the government acting in their official capacities. Indeed, a private individual, acting of his own accord, cannot violate anyone’s due process rights, as the Due Process Clause only protects individuals from government actions. See DeShaney v. Winnebago Cty. Dep't of Soc. Servs., 489 U.S. 189, 196 (1989) (“Like its counterpart in the Fifth Amendment, the Due Process Clause of the Fourteenth Amendment was intended to prevent government from abusing [its] power, or employing it as an instrument of oppression. Its purpose was to protect the people from the State, not to ensure that the State protected them from each other.”) (internal quotations and citations omitted); United Bhd. of Carpenters & Joiners of Am., Local 610, AFL-CIO v. Scott, 463 U.S. 825, 831 (1983) (“The Fourteenth 32 Case 1:17-cr-00532-RBK Document 38 Filed 10/01/18 Page 38 of 63 PageID: 338 Amendment protects the individual against state action, not against wrongs done by individuals.”) (emphasis in original) (internal quotations and citations omitted). A. BTPD Sgt. Nathan Roohr’s deletion of personal audio recordings is not conduct chargeable to the federal government. If the Rahman informant’s destruction of his personal tapes was not an action attributable to the government, and therefore failed to form the basis of a due process violation, Sgt. Roohr’s deletion of his personal audio recordings cannot form the basis of a due process violation here. As noted in the Statement of Facts above, Sgt. Roohr began creating audio recordings of interactions he had with Nucera in or around September of 2015. His initial intent in creating these recordings was to capture evidence of outrageous statements and behavior on Nucera’s part that rendered Nucera, in the minds of his subordinates, an unfit police chief, and created a demeaning and intolerable work environment for BTPD officers. Sgt. Roohr feared that without such evidence, if he tried to report Nucera’s conduct, he would be vulnerable to retaliation. In making these recordings of workplace misconduct, he captured Nucera’s racist and offensive statements about African Americans and other minorities, as well as Nucera’s September 1, 2016 statements about the victim made in the hours immediately following the victim’s arrest and the assault alleged in the Indictment. Sgt. Roohr continued to record interactions with Nucera on his personal cell phone in the weeks and months that followed without the FBI’s knowledge or direction. He continued this practice for several weeks even after he first met with Special Agent Durrant on November 33 Case 1:17-cr-00532-RBK Document 38 Filed 10/01/18 Page 39 of 63 PageID: 339 17, 2016, making personal recordings on various occasions from November 18 through December 3, 2016, without the FBI’s knowledge. Commencing on December 12, 2016, however, Sgt. Roohr also started making recordings at the specific request of the FBI, and in close coordination with the assigned FBI case agents, on FBI recording devices and on his own cell phone. As demonstrated in the Statement of Facts above, every recording that Sgt. Roohr made under FBI direction, whether recorded on an FBI recording device or on Sgt. Roohr’s cell phone, was preserved and turned over to the defense. The issue before the Court concerns a subset of the recordings Roohr made prior to his first interactions with the FBI. On January 11, 2017, having been served with a federal grand jury subpoena requesting all of his recordings, Roohr met with assigned FBI Special Agents Addison and Durrant and turned over to them the complete set of recordings captured on his own cell phone and saved to his own computer as of that date. These included both recordings he made before ever meeting with the FBI, as well as recordings he continued making, both with and without the FBI’s knowledge, after his initial contact with Special Agent Durrant. When Sgt. Roohr met with the assigned FBI agents to turn over these files, he “advised that prior to contacting the FBI, he deleted additional audio recordings he made after reviewing the recordings and determining that nothing of importance was recorded.” GA105 (emphasis added). Therefore, the operative facts for this Court to assess in light of the law are as follows: 34 Case 1:17-cr-00532-RBK Document 38 Filed 10/01/18 Page 40 of 63 PageID: 340 1. A whistleblower attempting to record workplace misconduct on the part of his boss made recordings using his personal cell phone. 2. The whistleblower then reviewed his own recordings and deleted some of them because he believed the recordings had failed to capture anything relevant. 3. Later, the whistleblower met with the FBI and became, in essence, an informant. 4. After becoming an informant, the whistleblower met with the FBI again, turned over to the FBI all the recordings then in his possession, and in doing so, disclosed to the FBI the fact that there were certain audio files he had once possessed, but could not turn over to the FBI because he had deleted those recordings prior to contacting the FBI. 5. Once the whistleblower was acting under FBI direction, he did not delete any recordings. 6. All of the recordings the whistleblower made once acting under FBI direction, whether on his personal device or on an FBI recording device, were preserved and disclosed to the defense. Like Sgt. Roohr, the Rahman informant created the recordings in question using his own recording device. Also like Sgt. Roohr, the Rahman informant originally made the recordings not to assist the federal government in its investigation, but for his own reasons, including self-preservation. And as in Rahman, all recordings Sgt. Roohr made under the direction and 35 Case 1:17-cr-00532-RBK Document 38 Filed 10/01/18 Page 41 of 63 PageID: 341 supervision of the FBI were preserved and disclosed. But Sgt. Roohr’s conduct here was even less closely tied to federal government action than the Rahman informant’s. Unlike Sgt. Roohr, the Rahman informant was already working with the FBI when he created and deleted the personal recordings at issue there. The facts before this Court do not allege any destruction of evidence on the part of a government actor, and therefore cannot possibly constitute a due process violation. Rahman, 189 F. 3d at 139-140; Colon, 865 F.2d at 30. The fact that Sgt. Roohr happens to have been a local police officer at the time he made and deleted his early, personal recordings does not render his actions “chargeable to the State” (here, the federal government) for purposes of a Youngblood/Rahman analysis. When Sgt. Roohr deleted his personal recordings, he had not yet made contact with the FBI, and certainly was not acting at the FBI’s behest. The unpublished memorandum opinion in United States v. Lisyansky, No. S2-11-Cr.-986 (GBD), 2014 WL 1046750 (S.D.N.Y., March 13, 2014), though not binding on this Court, is instructive. There, during the course of its investigation of Lisyansky’s murder for hire plot, the federal government obtained from the New York City Police Department (“NYPD”) certain surveillance video evidence that the NYPD had gathered during its own investigation. At trial, the federal government introduced still photographs created from this surveillance footage. When defense counsel requested the full surveillance video, the prosecution explained that the federal government was not in possession of it and had been unable to obtain it. The prosecution 36 Case 1:17-cr-00532-RBK Document 38 Filed 10/01/18 Page 42 of 63 PageID: 342 “was informed by NYPD personnel that the NYPD did not have a copy of that video and that they had no record or recollection of having ever obtained it.” Id. at *6. In response to Lisyansky’s request for a new trial on the grounds that his due process rights were violated by the prosecution’s failure to obtain and produce the surveillance video, the Hon. George B. Daniels, applying Rahman, ruled that “the Government never possessed the surveillance video at issue and any loss is not chargeable to the Government.” Id. at *7. If the loss of evidence by NYPD personnel acting in their official capacities could not be attributed to the federal government agents and prosecutors investigating Lisyansky, then certainly actions taken by Sgt. Roohr prior to any contact with the FBI, and taken for the purpose of protecting himself from workplace retaliation – not even in the course of any criminal investigation he was conducting on behalf of the BTPD – cannot be attributed to the federal government for purposes of determining whether a due process violation has occurred here. This outcome, while never directly endorsed by either the Supreme Court or the Third Circuit, flows inevitably from the body of case law that addresses the concept of the “prosecution team” in the context of claims that the prosecution suppressed evidence in violation of Brady. As the Third Circuit has noted, “Brady places an affirmative obligation on prosecutors ‘to learn of any favorable evidence known to the others acting on the government’s behalf in the case.’ . . . That said, ‘Kyles cannot ‘be read as imposing a duty on the prosecutor’s office to learn of information possessed by other government 37 Case 1:17-cr-00532-RBK Document 38 Filed 10/01/18 Page 43 of 63 PageID: 343 agencies that have no involvement in the investigation or prosecution at issue.’” United States v. Pelullo, 399 F.3d 197, 216 (3d Cir. 2005), as amended (Mar. 8, 2005), quoting Kyles, 514 U.S. at 437, and United States v. Merlino, 349 F.3d 144, 154 (3d Cir. 2003). Sgt. Roohr is a witness, not a member of the federal prosecution team. At best, he is a member of a local government agency, the BTPD, that has no involvement in the investigation or prosecution at issue, except that some of its members are witnesses. In any event, even if Sgt. Roohr’s deletion of a subset of his personal recordings were chargeable to the federal government – it is not – Nucera’s Youngblood claim would still fail, as he cannot meet either the materiality or bad faith requirements set forth in Youngblood and Trombetta. B. Nucera cannot establish that the deleted recordings are material. Under Trombetta, to show materiality, the defendant must show that the evidence had apparent exculpatory value and that the defendant could not obtain comparable evidence by other means. Certainly, there is no indication that Nucera could obtain recordings that Sgt. Roohr captured surreptitiously without his knowledge and then deleted. So the only question before the Court at this stage of the Youngblood analysis is whether the evidence had apparent exculpatory value at the time it was deleted. It did not. The exact contents of these deleted recordings are unknown, and were unknown to the assigned case agents when they first learned of them, after Sgt. Roohr had already deleted them. The recordings may or may not even have captured any interactions with Nucera, or any conversation with anyone 38 Case 1:17-cr-00532-RBK Document 38 Filed 10/01/18 Page 44 of 63 PageID: 344 at all, let alone content that could somehow exonerate Nucera. Nucera has not even bothered to allege why, specifically, he believes the missing audio files might have had exculpatory value. He merely asserts that this is the case (Defense Brief at 56-57). If destruction of semen found on a rape victim’s clothing did not constitute a due process violation (Youngblood), and destruction of a saliva sample, testing of which might have exonerated the defendant did not constitute a due process violation (Stevens, 935 F.2d at 1388), then clearly, deletion of audio recordings with unknown contents cannot constiute a due proces violation here. C. Nucera cannot establish that the FBI, or even Sgt. Roohr, acted in bad faith. There is no indication that either the assigned FBI Special Agents or Sgt. Roohr acted with the bad faith necessary to establish a due proces violation. Bad faith is shown only when the actual exculpatory value of the evidence is immediately apparent and when the evidence is destroyed with the intent of preventing the defendant from using it. As noted above, Sgt. Roohr did not make the recordings in question with the intent of aiding a criminal investigation, as there was no criminal investigation into Nucera’s conduct at the time he made the recordings. Nor was there any criminal investigation in existence at the time Sgt. Roohr deleted them – prior to contacting the FBI. Thus, any potential exculpatory value these recordings might have had certainly would not have been apparent to Sgt. Roohr at the time he deleted them. 39 Case 1:17-cr-00532-RBK Document 38 Filed 10/01/18 Page 45 of 63 PageID: 345 Nor is there reason to suspect that Sgt. Roohr deleted these recordings with the specific intent of preventing Nucera from using them. If that had been the case, it would have made far more sense for Sgt. Roohr to hide the fact that he had deleted some recordings. He did not. Rather, he freely explained to the FBI that before the existence of any criminal investigation, he reviewed the recordings that he had made and deleted some, the contents of which appeared to him, at that time, to be irrelevant. The very most that could be said of such conduct is that it was negligent – and even this is a stretch. Nor can it be said that the assigned FBI agents (the only truly relevant actors for purposes of the present analysis) acted in bad faith. Nucera first faults them for failing to request every recording in Sgt. Roohr’s possession immediately upon learning he had made any recordings at all (Defense Brief at 57). This would not have prevented the loss of evidence in question, as by then it was too late. Sgt. Roohr had already deleted the recordings. Nucera next faults the government for failing to obtain a search warrant to seize and search Sgt. Roohr’s personal computer on January 11, 2017, when he brought the computer to the assigned Special Agents’ office, on the theory that perhaps forensic testing could have been done on the computer that would have retrieved the files that Sgt. Roohr deleted before first contacting the FBI (Defense Brief at 57-58). There is no evidence to suggest that the case agents purposefully failed to take such steps in order to let apparently exculpatory evidence slip through their fingers so that Nucera would later be unable to use it. 40 Case 1:17-cr-00532-RBK Document 38 Filed 10/01/18 Page 46 of 63 PageID: 346 At this stage of the investigation, the case agents were attempting to collect evidence to determine whether enough evidence of a federal crime existed to bring charges. It was their goal to obtain as much relevant evidence as possible so that this determination could be made. And in fact, the agents served Sgt. Roohr with a federal grand jury subpoena requesting all recordings in his possession. GA154-55. Thus, the facts do not suggest that any failure to take a step that would have resulted in aquiring more recordings was intentional. Rather, the most that can be said was that such a failure was negligent. Negligence is not enough to estabish a due process violation. Youngblood, 488 U.S. at 58; United States v. Christian, 302 F. App’x 85, 86-87 (3d Cir. 2008) (finding no due process violation where fingerprint technician failed to follow procedure and lost fingerprint, because there was no evidence the technician had acted purposely or maliciously); United States v. Taylor, 379 F. App’x 240, 243 (3d Cir. 2010) (no due process violation where investigators misplaced a surveillance video; though the loss might be characterized as negligence, there was no conscious effort to suppress exculpatory evidence, so no bad faith). D. Nucera’s speculation that the FBI knew Sgt. Roohr was making recordings prior to the initiation of any formal investigation does not entitle him to an evidentiary hearing. In order to receive a pretrial evidentiary hearing on claims alleging a defect in the institution of the prosecution, the defendant’s “moving papers must demonstrate a ‘colorable claim’ for relief.” United States v. Voigt, 89 F.3d 1050, 1067 (3d Cir. 1996), quoting United States v. Brink, 39 F.3d 419, 424 (3d 41 Case 1:17-cr-00532-RBK Document 38 Filed 10/01/18 Page 47 of 63 PageID: 347 Cir.1994) (remanding for hearing where Brink alleged facts that, if true, “could violate a defendant’s rights under the Sixth Amendment”). In order to be “colorable,” a defendant’s motion must consist of more than mere bald-faced allegations of misconduct. Voigt, supra, citing United States v. Sophie, 900 F.2d 1064, 1071 (7th Cir. 1990) (“A district court does not have to hold evidentiary hearing on a motion just because a party asks for one.”). There must be issues of fact material to the resolution of the defendant’s constitutional claim. Id. The purpose of an evidentiary hearing is to “assist the court in ruling upon a defendant’s specific allegations of unconstitutional conduct . . . not to assist the moving party in making discoveries that, once learned, might justify the motion after the fact.” United States v. Hines, 628 F.3d 101, 105 (3d Cir. 2010). Here, the facts of record make abundantly clear that Sgt. Roohr’s conduct in deleting the tapes was in no way chargeable to the government. Therefore, as a legal matter, because there was no government action here, there cannot possibly be a due process violation. DeShaney, supra; Rahman, 189 F. 3d at 139-140; Colon, 865 F.2d at 30. Even were this Court to hold a hearing, and even were the result to be testimony that Sgt. Roohr purposefully deleted the recordings because he believed that they could somehow exonerate Nucera from criminal wrongdoing, he was acting as a private citizen both in making and deleting the recordings, or, at most, as an agent of the BTPD capturing workplace improprieties for potential purposes of internal affairs 42 Case 1:17-cr-00532-RBK Document 38 Filed 10/01/18 Page 48 of 63 PageID: 348 review. Under these facts, there is no colorable claim of a due process violation, and therefore no need for an evidentiary hearing. Nonetheless, if this Court finds that, in an abundance of caution, a hearing would be prudent, the government respectfully requests strict limits on the scope of such a hearing. The hearing should be narrowly tailored to the issue of determining: 1) whether Sgt. Roohr was acting under the direction or control of the federal government when he deleted the audio files in question; and 2) whether he was acting in bad faith. II. There Is No Need For A Starks Hearing. Citing United States v. Starks, 515 F.2d 112 (3d Cir. 1975), Nucera “seeks exclusion of any audio recordings allegedly attributed to him, as well as all other audio recordings, based upon the government’s inability properly to authenticate these recordings by a preponderance of the evidence” (Defense Brief at 65). Starks held that “[w]hen a colorable attack is made as to a tape’s authenticity and accuracy, the burden on those issues shifts to the party offering the tape, and the better rule requires that party to prove its chain of custody.” Id. at 121. Although he briefly mentions that the recordings are “unintelligible” and that Sgt. “Roohr and others had the ability to manipulate, edit and delete recordings” (Defense Brief at 67), Nucera provides nothing more than these bare assertions in support of this motion. The thrust of Nucera’s attack on the recordings is not based on their authenticity, but rather the fact that Sgt. Roohr “was free to record or not – and to delete recorded conversation when they did not go as he wanted – whenever he wanted to do so” (Defense 43 Case 1:17-cr-00532-RBK Document 38 Filed 10/01/18 Page 49 of 63 PageID: 349 Brief at 67). Accordingly, Nucera has not presented a >colorable attack= as to the authenticity of the recorded conversations to shift the burden to the Government and to justify a hearing. In Starks, the defendants questioned the authenticity of a proffered tape recording because there were “several versions or copies of the tape of varying degrees of intelligibility.” 515 F.2d at 122. The witness through whom the tape recording was offered was unable to state which of the versions was the original, and there was no evidence or even discovery concerning the chain of custody of any version of the recording. Id. at 121-22 The tape was admitted over objection. Id. at 121. When it was played for the jury, defense counsel stated categorically that it sounded significantly different from either of the two versions that counsel had previously heard. Id. at 122. The Court of Appeals for the Third Circuit concluded that the trial court had erroneously placed the burden upon the defense to “unauthenticate” the tape recording and had then compounded that error by refusing to require the government to provide discovery that might have permitted the defense to identify witnesses who could shed light upon the chain of custody of the tape. Id. at 123. The Court concluded that “[w]hen a colorable attack is made as to a tape=s authenticity and accuracy,” id. at 122, which in that case was a challenge that had been made “on not insubstantial grounds,” id., “the burden on those issues shifts to the party offering the tape . . . .” Id. at 122 (emphasis added). Accordingly, the Court held that the government should have born the burden to authenticate the recording offered into evidence. 44 Case 1:17-cr-00532-RBK Document 38 Filed 10/01/18 Page 50 of 63 PageID: 350 Significantly, the Third Circuit observed in Starks that “[b]ecause proffer of [tape-recorded] evidence may, in the particularized circumstances of a given case, involve one or more . . . problems in varying degrees it is difficult to lay down a uniform standard equally applicable to all cases.” Quoting a list borrowed from United States v. McKeever, 169 F. Supp. 426, 430 (S.D.N.Y. 1958), 10 the Court characterized it as “a useful exposition” (a word defined by Oxford University Press as “a comprehensive description and explanation of a theory”) of a basis upon which the foundation for admissibility of tape-recorded evidence could be established. The Court did not thereby imply that it considered the list a “uniform standard” for admission of recorded evidence regardless of the circumstances of a particular case. It is notable that even under Starks proof of the seven listed factors was not considered essential for the admissibility of recorded evidence in every case tried in the Third Circuit. Equally significant, Starks was decided without The list, which was included in a footnote in the Starks opinion, was as follows: (1) That the recording device was capable of taking the conversation now offered in evidence. (2) That the operator of the device was competent to operate the device. (3) That the recording is authentic and correct. (4) That changes, additions or deletions have not been made in the recording. (5) That the recording had been preserved in a manner that is shown to the court. (6) That the speakers are identified. (7) That the conversation elicited was made voluntarily and in good faith, without any kind of inducement. Starks, 515 F.2d at 121 n.11 (quoting United States v. McKeever, 169 F. Supp. 426, 430 (S.D.N.Y. 1958)). 10 45 Case 1:17-cr-00532-RBK Document 38 Filed 10/01/18 Page 51 of 63 PageID: 351 consideration of Rule 901(a) of the Federal Rules of Evidence, which was enacted the same year as the Starks opinion and had not been in effect when Starks was tried. That rule sets forth the general rule for authentication of evidence as follows: The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims. [Fed. R. Evid. 901(a).] The Advisory Committee commentary concerning Rule 901 indicated that authentication is “a special aspect of relevancy,” which “falls in the category of relevancy dependent upon fulfillment of a condition of fact and is governed by the procedure set forth in Rule 104(b).” Rule 104(b), in turn, provides the following: When the relevancy of evidence depends upon the fulfillment of a condition of fact, the court shall admit it upon, or subject to, the introduction of evidence sufficient to support a finding of the fulfillment of the condition. [Fed. R. Evid. 104(b) (emphasis added).] Courts construing the authentication requirement have observed that “[t]he burden of proof . . . is slight. ‘All that is required is a foundation from which the fact-finder could legitimately infer that the evidence is what the proponent claims it to be.’” Link v. Mercedes-Benz of North America, Inc., 788 F.2d 918, 927 (3d Cir. 1986) (quoting McQueeny v. Wilmington Trust Co., 779 F.2d 916, 928 (3d Cir. 1985). 11 Thus, “the showing of authenticity is not on a Although Link and McQueeny are civil cases, the evidentiary standard is the same in criminal cases and is unaffected by the higher burden of proof on the substantive issues in a criminal case. See Bourjaily v. United States, 483 U.S. 171, 175-76 (1987). 11 46 Case 1:17-cr-00532-RBK Document 38 Filed 10/01/18 Page 52 of 63 PageID: 352 par with more technical evidentiary rules, such as hearsay exceptions, governing admissibility. Rather, there need be only a prima facie showing, to the court, of authenticity, not a full argument on admissibility. Once a prima facie case is made, the evidence goes to the jury and it is the jury who will ultimately determine the authenticity of the evidence, not the court.” United States v. Goichman, 547 F.2d 778, 784 (3d Cir. 1976) (emphasis added). Under this standard, no pretrial hearing should be necessary to establish the authenticity of the recordings in this case. Rule 901(b) contains illustrations of some of the methods that can be used to authenticate various kinds of evidence, including, in pertinent part: (b) Illustrations. By way of illustration only, and not by way of limitation, the following are examples of authentication or identification conforming with the requirements of this rule: (1) Testimony of witness with knowledge. Testimony that a matter is what it is claimed to be. ... (5) Voice identification. Identification of a voice, whether heard firsthand or through mechanical or electronic transmission or recording, by opinion based upon hearing the voice at any time under circumstances connecting it with the alleged speaker. As noted above, these are the very methods that will be used to authenticate the challenged recording in this case: The witnesses will testify that the recordings are authentic and correct and as to how the recordings were made and how they were maintained. They will establish that the conversations were recorded by devices capable of recording conversations, the recordings were transferred to other media, no changes have been made in the recordings, and the recordings have been preserved. 47 Case 1:17-cr-00532-RBK Document 38 Filed 10/01/18 Page 53 of 63 PageID: 353 Based in part on Rule 901 of the Federal Rules of Evidence, many courts have rejected the rigidity of the McKeever approach. For example, the Court of Appeals for the Second Circuit “has expressly and repeatedly declined to adopt the McKeever approach, refusing to ‘adopt[ ] a rigid standard for determining the admissibility of tape recordings.’” United States v. Hamilton, 334 F.3d 170, 186 (2d Cir. 2003) (quoting United States v. Fuentes, 563 F.2d 527, 532 (2d Cir.1977), cert. denied, 434 U.S. 959 (1977)). “Instead,” the Court of Appeals for the Second Circuit has: adopted a general standard, namely, that the government ‘produce clear and convincing evidence of authenticity and accuracy’ as a foundation for the admission of such recordings.” Id. [563 F.2d at 532] (quoting United States v. Knohl, 379 F.2d 427, 440 (2d Cir.) . . . . We see no reason to adopt a more rigid standard in this case. A tape recording may be admitted in evidence when it has been properly authenticated “by evidence sufficient to support a finding that the matter in question is what its proponent claims.” Fed. R. Evid. 901(a); see, e.g., United States v. Tropeano, 252 F.3d 653, 661 (2d Cir. 2001); United States v. Barone, 913 F.2d 46, 49 (2d Cir. 1990). Hamilton, 334 F.3d at 186. No more should be required here. In summary, Starks does not require that all seven prongs cited in its footnote 5 be satisfied; even if it had, Rule 901 has superseded Starks; and the trend is toward a practical, flexible application of Rule 901. The Government will provide adequate authentication of the recordings before they are offered into evidence at trial. Accordingly, the defendant’s request for a full evidentiary hearing should be denied. 48 Case 1:17-cr-00532-RBK Document 38 Filed 10/01/18 Page 54 of 63 PageID: 354 III. Bifucation of Trial Would be Improper and Impracticable. Under Fed. R. Crim. P. 8(a), multiple offenses against a defendant may be joined in a single indictment if the offenses are, inter alia, “of the same or similar character.” The Defendant does not claim that the joinder of Count One with Counts Two and Three are in any way improper under Rule 8(a). Rather, he claims that the trial should be “bifurcated” because he would be prejudiced if the jury heard “examples of [the Defendant’s] racially insensitive speech” (Defense Brief at 76). Essentially, the defendant is asking the Court to sever the claims of the indictment, without having to meet the heavy burden imposed under Fed. R. Crim. P. 14(a). 12 There is no basis in law to support this proposed “bifurcation” of the trial. Moreover, it would be impractical under the circumstances, confusing and repetitive, a waste of judicial resources and prejudicial to the Government. As Nucera is not seeking severance, the Government will not detail how he utterly fails to meet the “heavy burden” to “‘demonstrate not only that the court would abuse its discretion if it denied severance, ‘but also that the denial of severance would lead to clear and substantial prejudice resulting in a manifestly unfair trial.’” United States v. Lore, 430 F.3d 190, 205 (3d Cir. 2005) (quoting Zafiro v. United States, 506 U.S. 534, 539 (1993)). “A severance should be granted ‘only if there is a serious risk that a joint trial would compromise a specific trial right…, or prevent the jury from making a reliable judgment about guilt or innocence.’” United States v. Bornman, 559 F.3d 150, 156 (3d Cir. 2009) (quoting Lore, 430 F.3d at 205). And “even if there were some risk of prejudice, … [it] can be cured with proper instructions, and ‘juries are presumed to follow their instructions.’” Zafiro, 506 U.S. at 540 (quoting Richardson v. Marsh, 481 U.S. 200, 210 (1987)). See also United States v. Tutis, 167 F. Supp. 3d 683, 694 (D.N.J. 2016) (discussing and denying motion for severance); United States v. Lacerda, No. 12–303, 2013 WL 3177814, at *7 (D.N.J. June 19, 2013) (same). 12 49 Case 1:17-cr-00532-RBK Document 38 Filed 10/01/18 Page 55 of 63 PageID: 355 In support of his motion for bifurcation, Nucera relies upon three criminal cases: United States v. Joshua, 976 F.2d 844, 848 (3d Cir.1992) (abrogated on other grounds by Stinson v. United States, 508 U.S. 36 (1993)) United States v. Busic, 587 F.2d 577 (3d Cir.1978), rev'd on other grounds, 446 U.S. 398 (1980); and United States v. Scott, 673 F.Supp.2d 331, 340 – 341 (M.D. Pa. 2009). 13 The three criminal cases relied upon by Nucera have one thing in common; they all concern bifurcation of a count alleging that the defendant was felon in possession of a weapon from the remaining counts of an indictment. Nucera does not cite, and the Government has been unable to find, a single case involving the bifurcation of counts outside of this specific context, much less the bifurcation of a case involving an alleged civil rights violation. Indeed, the Third Circuit has noted that “bifurcation is a ‘novel approach’ to the problem presented.” Joshua, 976 F.2d at 848 (quoting Busic, 587 F.2d. at 585). The Third Circuit has also declined to extend Joshua. See, United States v. Jacobs, 44 F.3d. 1219 (3d. Cir. 1995) (declining to extend Joshua to single-count felon in possession cases). The reasons for this are obvious. Bifurcation of a count alleging that the defendant was a felon in possession of a weapon is “considerably more efficient Nucera also inexplicably cites to a civil case, Coleman v. Home Depot, 306 F.3d. 1333 (3d Cir. 2002) for the uncontroversial proposition that Jurors may be impacted by evidence of racism (Defense Brief 75-76). Coleman, which dealt with a District Court’s decision to exclude an EEOC Letter of Determination that the Court found to be conclusory and contrary to the evidence presented to Jury, has no application to the instant matter. Here, the evidence of racism that Nucera wants kept from the Jury are his own words, not an unsupported opinion by a third party. 13 50 Case 1:17-cr-00532-RBK Document 38 Filed 10/01/18 Page 56 of 63 PageID: 356 than conducting an entire new jury trial on the weapon possession charge at a later date.” Joshua, 976 F.2d at 848. In such cases, the Jury hears all of the evidence except one fact (the defendant’s prior conviction), they are then charged, the alternates are excused, the remaining Jurors deliberate, and after reaching an initial verdict, they are presented with one additional fact before they are re-charged and called upon to deliberate the guilt or innocence on the felon-in-possession charge. In cases outside of this one exception, however, bifurcation would be impracticable, if not impossible. In the instant case, for example, the bifurcation that Nucera requests would require that the Jury hear all of the evidence regarding the assault, including many of the recordings, the Jury would then be charged and the alternate Jurors excused, and they would deliberate, and after returning, the Jurors would be presented with a large amount of new evidence, and numerous witnesses, many of whom had earlier testified. This procedure would do nothing to promote efficiency. Indeed, it creates an additional risk that the second part of the trial could not be completed as the alternate Jurors would have been excused. Moreover, many of the same witnesses, including numerous Bordentown Township police officers, would need to be called and re-called during the two parts of the proposed bifurcated trial. The resulting disjointed trial would be confusing and repetitive, a waste of judicial resources and prejudicial to the government. 51 Case 1:17-cr-00532-RBK Document 38 Filed 10/01/18 Page 57 of 63 PageID: 357 Indeed, it would be impossible to compartmentalize the proceedings in the manner Nucera suggests because much of the same evidence, including several of the recordings in which Nucera uses racist language, are directly relevant not only to the hate crime charged in Count One, but also to the deprivation of rights claim charged in Count Two. Notably, Nucera is heard making several racist statements in the recordings that Sgt. Roohr made on September 1, 2016, when Nucera was discussing Civilian 1’s arrest with Sgt. Roohr. (US000032 (audio recording); GA133-39 (draft transcript disclosed to the defense as US000033). Later that evening, Nucera called Civilian 1 a “[f]ucking little, fucking nigger.” US000034 (audio recording); GA141 (draft transcript disclosed to the defense as US000035). Similarly, in the recordings that Sgt. Roohr made on December 13, 2016, Nucera attempted to defend the excessive use of force against Civilian 1 by arguing that numerous police officers had to respond to the Ramada “‘cause of six unruly fucking niggers.” US000038 (audio recording); GA145 (draft transcript disclosed to the defense as US000039). Accordingly, Nucera’s motion to bifurcate the trial should be denied. IV. The Government Will Comply With F.R.E. 404(b). The United States is aware of its obligations under Rule 404(b) of the Federal Rules of Evidence to provide the defendant with reasonable notice in advance of trial of the general nature of any evidence of other crimes, wrongs or acts that it intends to introduce at trial and will do so in a manner that will not delay the trial. The trial in this matter has not yet been scheduled. 52 Case 1:17-cr-00532-RBK Document 38 Filed 10/01/18 Page 58 of 63 PageID: 358 Nevertheless, the Government agrees to provide any such material to the defendant at the pretrial hearing. Accordingly, the defendant’s motion should be denied as moot. V. The Government Has Complied With Its Giglio Obligations. Nucera has moved for an order directing the Government to obtain and to review the personnel and other files regarding the law enforcement witnesses expected to testify in this matter, and to produce any documents and information contained in such files that is impeaching to the witnesses’ credibility. The government is well aware of its obligations under Brady, supra, and its progeny, including Giglio v. United States, 405 U.S. 150, 154 (1972), and will promptly disclose any evidence any documents and information contained in such files that is impeaching to the witnesses’ credibility if and when any such evidence comes into the government’s possession. Nucera has specially asked for a list of items that he believes the government is obligated to produce (Defense Brief at 86-87). The government agrees that it would have an obligation to produce the first seven items listed by Nucera. However, the last three items on Nucera’s list (copies of witnesses’ resumes, training certificates of witnesses, and training materials) are clearly not included within the government’s Giglio obligations. Should those materials be discoverable for other reasons, the government will produce them. (In fact, the Government has provided some training materials in discovery). Accordingly, the defendant’s motion should be denied as moot. 53 Case 1:17-cr-00532-RBK Document 38 Filed 10/01/18 Page 59 of 63 PageID: 359 VI. The Governemnt Has Complied With Its Brady Obligations. Nucera has moved for an order directing the Government to produce certain material that he claims is covered by Brady and Giglio. The requested material has either been produced, is not discoverable, or is not in the government’s possession. Specifically: 1. The government has turned over all recordings in its possession that were made by Officer Hess of his conversations with Nucera; 2. The government has turned over all recordings in its possession that were made by Officer Hess of his conversations with other officers: 3. The government has turned over all recordings in its possession that were made by Jacob Olearchik; 14 4. The government is not in possession of Officer Mount’s medical records; 5. As noted in Point V, supra, the government is not obligated to disclose the resumes of all its witnesses; 6. As noted in Point V, supra, the government is not obligated to disclose the training certificate of all its witnesses; 7. As noted in Point V, supra, the government is not obligated to disclose the training materials requested, although it has provided some of these materials to Nucera in discovery; The government inadvertently failed to disclose the recoding made by Olearchik that is referenced on Page 90 of the Defense Brief. However, it has now produced the recording at issue. 14 54 Case 1:17-cr-00532-RBK Document 38 Filed 10/01/18 Page 60 of 63 PageID: 360 8. The government is not obligated to disclose the FBI training materials requested; 9. The government understands is obligation to turn over any promises of lenience or non-prosecution of witnesses to the defense, and will comply with such obligation; 10. The unrelated FBI investigation about which Nucera seeks information is completely irrelevant to the charges against Nucera. In an abundance of caution, the government turned over a statement made by Civilian 1, who was a witness in that investigation. However, the mere fact that the victim in this case was a witness in that unrelated case does not make the entire case file discoverable; 11. The government is not in possession of any documents relating to any complaints made by Civilian 1 to the Bordentown Township Committee regarding the events of September 1, 2016. Accordingly, the defendant’s motion should be denied. VII. The Governemnt Has Instructed The Agents To Preserve Their Rough Notes. Nucera requests that the Court order the government agents to preserve their “rough notes” related to this investigation. The government is aware of and will comply with its obligations under United States v. Vella, 562 F.2d 623, 627 (3d Cir. 1976). Should the Court wish to review the agents’ notes they will be made available. Therefore Nucera’s motion to compel the government to preserve their “rough notes” related to this investigation is moot and should be denied. 55 Case 1:17-cr-00532-RBK Document 38 Filed 10/01/18 Page 61 of 63 PageID: 361 VIII. The Government Is Aware Of Its Jencks Disclosure Obligations. The government is aware of its disclosure obligations under the Jencks Act, 18 U.S.C. § 3500, and will comply with those obligations in a timely manner. To that end, the government will to provide this material to Nucera five (5) days before any hearing or the trial of this matter, which more than satisfies the Jencks Act and ensures the defendant’s due process rights to a fair and just trial. See United States v. Higgs, 713 F.2d 39, 44 (3d Cir. 1983), cert. denied, 464 U.S. 1048 (1984); United States v. Kubiak, 704 F.2d 1545, 1549-50 (11th Cir.), cert. denied, 464 U.S. 852 (1983); United States v. Kopituk, 690 F.2d 1289, 1337-41 n.47 (11th Cir. 1982), cert. denied, 463 U.S. 1209 (1983). Accordingly, Nucera’s motion for early Jenks should be denied. IX. Defendant Should Not Be Permitted To File Additional Motions Based On Discovery Materials Already Received. Nucera seeks to reserve the right to file additional motions in the future. To the extent this need arises from any further disclosure of discovery materials, pursuant to the government’s continuing discovery obligation, the government does not oppose any such request. However, Nucera should not be permitted to enlarge the time for filing of motions that could have been brought based on discovery materials already provided. Accordingly, the government reserves the right to oppose on timeliness grounds any motions the defendant may file in the future. 56 Case 1:17-cr-00532-RBK Document 38 Filed 10/01/18 Page 62 of 63 PageID: 362 X. Defendant Should Be Ordered To Provide Reciprocal Discovery To The Government. By letter dated January 3, 2018, the government sought reciprocal discovery from Nucera. Rule 16(b)(1) firmly establishes the right of the government to reciprocal discovery from a defendant. Subsection (b)(1)(A) allows the government, upon compliance with a legitimate request by a defendant for similar material, to do the following: inspect and copy or photograph books, papers, documents, photographs, tangible objects, or copies or portions thereof, which are within the possession, custody, or control of the defendant and which the defendant intends to introduce as evidence in chief at trial. Subsections (b)(1)(B) and (b)(1)(C) mandate reciprocal discovery of scientific tests and expert testimony, respectively. Under the clear language of Rule 16(b)(1), courts uniformly have directed reciprocal discovery. See, e.g., United States v. Bump, 605 F.2d 548, 551-52 (10th Cir. 1979) (requiring reciprocal disclosure over defendant's objection that it would violate his constitutional rights); United States v. Sherman, 426 F. Supp. 85, 93 (S.D.N.Y. 1976). To date, the government has not received any reciprocal discovery from Nucera. Because discovery has been made available to the defendant, the dovernment is entitled, pre-trial, to reciprocal discovery under Rule 16(b)(1). Therefore, the Court should direct disclosure of discoverable information forthwith. 57 Case 1:17-cr-00532-RBK Document 38 Filed 10/01/18 Page 63 of 63 PageID: 363 CONCLUSION For all the foregoing reasons, the United States respectfully requests that the defendant’s pretrial motions be denied without a hearing, and that the defendant be ordered to provide reciprocal discovery. Respectfully submitted, CRAIG CARPENITO UNITED STATES ATTORNEY By: Dated: October 1, 2018 Trenton, NJ 58 ___________________________ Molly S. Lorber R. Joseph Gribko Assistant U.S. Attorneys Case 1:17-cr-00532-RBK Document 38-1 Filed 10/01/18 Page 1 of 156 PageID: 364 GOVERNMENT’S APPENDIX Case Document 38-1 Filed 10/01/18 Page 2 of 156 PagelD?3?33; OFFICIAL Recono F0302 (Rev, 5-8-10) 5:29;: FEDERAL BUREAU OF INVESTIGATION .4 Dateofentry 03/22/2017 COLLEEN MARIE ECKERT, date of birth, social security numeb home address. -, cell phone number, was advised of the identity of the interviewing agents and the purpose of the interview. ECKERT was interviewed at the Bordentown Township Municipal Building. ECKERT provided the following information: ECKERT's maiden name is COCHRAN. She is currently employed by Bordentown Township as the Municipal Clerk and Registrar. ECKERT also has additional duties as Deputy Tax Collector and as a part of the administrative team fulfilling the duties of the Town Administrator. Former CHIEF FRANK NUCERA JR. and CHIEF FINANCIAL OFFICER DAVID KOCIAN were the other members of the administrative team. CHIEF NUCERA was responsible for personnel matters for Bordentown Township. He was also responsible for the agenda and resolutions for the Town Committee. After CHIEF NUCERA retired, an interim Township Administrator was hired, GEORGE HEAUBER. ECKERT stated, "The three of us would consult with the issues." CHIEF NUCERA would consult with her regarding personnel matters for non sworn personnel and they would rely on the employee manual for guidance. ECKERT, CHIEF NUCERA, and KOCIAN's roles as Township Administrator were defined in the township resolution. ECKERT stated that she could not recall if they deviated from their defined roles in the resolution. CHIEF NUCERA had civil service appointing authority and was to oversea personnel matters for sworn and non sworn personnel. CHIEF NUCERA often met with the Mayor and developers. KOCIAN was the Certifying Officer and CHIEF NUCERA was the Supervising Officer. KOCIAN prepared the budget. ECKERT had no knowledge of whether CHIEF NUCERA put any line items into the budget. ECKERT indicated that she never got involved with the budget except as per her duties. CHIEF NUCERA signed off on the time sheets including police officer time sheets. For the non police officer time sheets, CHIEF NUCERA signed off as Director of Personnel. CHIEF NUCERA also signed purchase 03/06 Bordentown, New Jersey, United States (In Person) /2017 neg 03/10/2017 by Vernon I. Addison, ARTHUR This document contains neither recommendations nor conclusions of the FBI It is the property of the FIJI and is loaned to your agency; it and IIS contents are not to be distributed outside your agency. GA001 Case Document 38-1 Filed 10/01/18 Page 3 of 156 PageID: 366 (Rev. 05-0840) 282A-NK-2108117 03/06 Conunmuonormsozor (U) COLLEEN MARIE BCKERT /2017 mm 2 of orders. ECKERT advised that she signs purchase orders as the final signing authority. ECKERT explained that during a week in 3/2016 she was out due to surgery and CHIEF NUCERA may have signed purchase orders as the final signing authority. ECKERT stated that she does not know how police department overtime vendors are billed and she does not handle any police department overtime vendor billing. ECKERT knew that some of the police overtime vendors were PETRO TRUCK STOP, and Bordentown High School. None of the billing for these vendors comes across her desk. ECKERT did not know how the officers were paid for overtime from outside vendors. ECKERT believed that SHELLY LNU, the police department secretary, may handle these matters. ECKERT assumed that any money mailed to the police department from police overtime vendors was submitted to the finance department of the township. ECKERT advised that she does not have access to any other township financial accounts except for the municipal clerk?s account. CHIEF NUCERA was an authorized signer on the cash management plan. The cash management plan is an annual plan which designates who can be authorized signers and it authorizes how finances are managed. CHIEF NUCERA was an authorized secondary signer on the municipal clerk's account. KOCIAN was also a secondary signer for the municipal clerk's account. ECKERT advised that she did not know anything about the police department's overtime accounts. ECKERT did not believe that CHIEF NUCERA had a bachelor's degree. CHIEF NUCERA attended seminars related to his job duties as Township Administrator. ECKERT is required to receive continuing education training related to her duties every two years and ethics training every year. Ethics training was never offered to everyone in the administration. ECKERT believed that the tax assessor, chief financial officer, tax collector, and municipal clerk were required to get ethics training. ECKERT indicated that CHIEF NUCERA worked as the Township Administrator every day and as issues arose. ECKERT claims that some days she did not see CHIEF NUCERA at all but on other days she saw him for four or five hours. ECKERT, CHIEF NUCERA, and KOCIAN received an extra twenty thousand dollars to share the township administrator duties. ECKERT advised that there were no set meetings scheduled with CHIEF NUCERA regarding is duties as township administrator. CHIEF NUCERA would meet with ECKERT when issues arose. CHIEF NUCERA would also meet with ECKERT periodically during the day. CHIEF NUCERA wore his police uniform most of the day. CHIEF NUCERA did not have computer access upstairs in the township offices. GAOOZ Case Document 38-1 Filed 10/01/18 Page 4 of 156 PageID: 367 (Rev. 05-08-10) 03/06 ConlinualionofFD-3020f (U) COLLEEN MARIE ECKERT ,On /2017 .Pagc 3 Of 5 CHIEF NUCERA's main responsibility as township administrator was human resource matters. ECKERT claimed that she and CHIEF NUCERA worked as equal partners but he was like a mentor to her. ECKERT advised that she has known CHIEF NUCERA since she started working at Bordentown Township in June of 1996. Ecmm acknowledge that she and CHIEF NUCERA used racial slurs. ECKERT stated that the "n word" was used. ECKERT stated that they used the word "nig" not nigger. ECKERT recalled an occasion when came into the township building after hours. ECKERT stated, and CHIEF NUCERA) be like, oh that nig" in response to seeing ECKERT claimed the racial slur was said in a joking way. ECKERT never heard CHIEF NUCERA talk about Hispanics. CHIEF NUCERA called people he assumed were of Middle Eastern descent, "towel heads." ECKERT never heard CHIEF NUCERA be disrespectful to women. ECKERT explained her and CHIEF NUCERA's response to seeing - CHIEF NUCERA felt as though - was "working an angle." ECKERT acknowledged that the township committee discussed - pilot project in closed session. ECKERT did not sense that - and CHIEF NUCERA did not get along. GA003 Case Document 38-1 Filed 10/01/18 Page 5 of 156 PageID: 368 (Rev. 05-0840) 282A-NK-2108117 03/06 ContinuationofFD?302of (U) COLLEEN MARIE ECKERT .On /2017 .Page 4 of 5 ECKERT stated, NUCERA) told me that there was an incident at the Ramada." ECKERT was told by CHIEF NUCERA that SHAUN MOUNT got hurt. When ECKERT learned that CHIEF NUCERA was retiring things did not make sense to her. ECKERT talked to CHIEF NUCERA. CHIEF NUCERA mentioned the Ramada incident and that he was screaming at the mother. CHIEF NUCERA told ECKERT that there were some racial things said and that if he did not retire then he was going to be brought up on charges. ECKERT indicated that CHIEF NUCERA's explanation still did not make sense to her. ECKERT asked CHIEF NUCERA if he hit anyone to which CHIEF NUCERA replied that he did not. ECKERT did not believe that it made sense that CHIEF NUCERA would have to retire just because he was yelling at someone. CHIEF NUCERA claimed that they wanted to make sure he was not running a rogue agency. GA004 Case Document 38-1 Filed 10/01/18 Page 6 of 156 PageID: 369 FD-3028 (Rev. 05-08-10) 282A-NK-2108117 03/06 ContinuationofFD-3020f (U) COLLEEN MARIE: ECKERT /2017 .9ch 5 of 5 The day of the Ramada incident, CHIEF NUCERA did not tell ECKERT about anything he did. The only thing CHIEF NUCERA told ECKERT was that SHAWN MOUNT was going to be okay after hurting his back. GA005 Case 13-851 lFil?? 10101/18 3- Page 7 of 156 PageID: 370 I .. .4. CHINA. FEDEKUI BUREA If 0F INVESTIGATION Hulcul?cnlrVII:l.-III"l" 1'1, ?11fili'JI'IA izlDIIlch'uncd I 7 I 7 7 1. _Il' "33: - I. This FBII the propeny FBI and i< luun?cd yuur agency: iI and ll". coulenls are ?01 lo vour agency. GAOO [30.34123 um . 0.03% EfoCuWre'r? 37851 1 Fil?d Page 8 of 156 PageID: 371 Continuation of On JR. 7.5 133:7 1:17 _Ti _1 7.1.7 1:1" ?i i-r'zft Far? 19.: ?413~In. vii-w; ~f'11- mm 1 I1. 00(3qu 3851 Fil?d ?10??011/183 Page 9 of 156 PagelD: 372 7 . r' Continuation of 1713.30: m" .1 10 of 156 PageIDContinuation 3' On '1 .Pagc 10.1;1' t~ FIN . - 11:11:11": 1 . 12 51.3171; 51;} the; "El-g Lnj: L-gijgui; 41; nah-4; :25; 1.1x; Uh. EQJCLEII 111,17211m if 11-: GA009 lemm 3Page 11 of 156 PagelD: 374 ContinuationotFD-30201 4' ?l I 1 T5190 GAO10 Case Document 38-1 Filed 10/01/18 Page 12 of 156 PageID: 375 x2. Onmumr?mumo wwmmam?na (Rev. 5-840ml?! t. A 515? ohm often FEDERAL BUREAU OF INVESTIGATION Dateofenu'y 03/10/2017 ERICH RICHARD HESS, date of birth, social security number, h?me addressr - cell phone number, was advised of the identities of the interviewing agents and the purpose of the interview. HESS provided the following information: HESS has been employed by the Bordentown Township Police Department as a police officer since 03/10/2008. He is currently assigned to the patrol bureau. Prior to becoming a police officer, HESS worked for the Burlington County Department of Health for 5 years. HESS has a degree in environmental science from Kutztown University. HESS stated, "He disgraced that" referring to CHIEF FRANK NUCERA JR. disgracing the title of chief. HESS stated that he and CHIEF NUCERA are not friends. HESS described working with CHIEF NUCERA as producing paranoia due to the fact that CHIEF NUCERA had gotten rid of several officers. HESS heard about the incident at the RAMADA HOTEL. HESS heard that CHIEF NUCERA banged the head of a suspect off of the door jam. HESS was working that day but was at the station after transporting a suspect that Sergeant ROOHR had arrested. Two people were arrested at the RAMADA HOTEL and transported to Bordentown Township Police headquarters. HESS could not fully recall but he believed that he may have been relieved before any arrestees from the RAMADA HOTEL were brought to the police station. HESS stated that his main concern was for Lieutenant MOUNT. HESS acknowledged that he did not hear about CHIEF NUCERA's actions at the RAMADA HOTEL until shortly before the FBI investigation or at the beginning of the FBI investigation. HESS commented that he does not ask too many questions but he could see CHIEF NUCERA doing what was alleged. HESS heard that CHIEF NUCERA yelled at TERRI LNU, the manager at the RAMADA HOTEL. CHIEF NUCERA was using phrases like, "these people." HESS believed that the phrase was derogatory towards a particular group of people. HESS indicated that the police station has one cell area and a bench area to restrain suspects. 02/23/2017 Roebling New Jersey, United States (In Person) File? MW 03/07/2017 by Vernon I. Addison, DURRANT ARTHUR This document contains neither tecommendatiom not conclmions of the FBI. It is the property of the FBI and is loaned to your agency, it and its contents are not to be distributed outside your agency. GA011 Case Document 38-1 Filed 10/01/18 Page 13 of 156 PageID: 376 (Rev. 05-08-10) ContinuationofFD-3020f (U) RICHARD HESS 02/23/2017 .Pasc 2 of 5 Officers in the police department joked that CHIEF NUCERA was bipolar because he frequently went off on rants of profanity, demeaning comments, brow beating, and yelling. HESS recalled an incident with a kid named - was a big kid and he would fight at school. HESS was the school resource officer(SRO) at the time and had completed "station house adjustment" with - HESS stood up to - which help him gain - respect. Officers were refueling their police vehicles at the pumps near the middle school. believing he was being watched, began yelling at the officers but specifically a female officer. The female officer called for help. HESS responded to the scene and was able to calm - down. CHIEF NUCERA and his son Sergeant FRANK NUCERA rolled up and began cursing and pointing their fingers at - This escalated the situation and caused - to become angry. CHIEF NUCERA threatened to lock up - Approximately three years ago, HESS responded to a call of two vehicles racing on the border between Chesterfield Township and Bordentown Township. CHIEF NUCERA was in the area of the high school at the time. HESS had a vehicle, similar to the one described in the call, pass him. CHIEF NUCERA radioed that the vehicle crashed. When HESS got to the scene, CHIEF NUCERA had the driver at gun point. The driver was only 18 or 19 years old. CHIEF NUCERA's gun was pointed at the kid who was laying face down on the ground. HESS advised that he never considered whether CHIEF NUCERA caused the kid's vehicle to crash until he was asked by the FBI. Sometime around election time, HESS was working a detail with CHIEF NUCERA. By this time, officers had begun recording CHIEF NUCERA. CHIEF NUCERA hinted that would not like when (DONALD) TRUMP gets in office. CHIEF NUCERA stated that TRUMP would be taking away "free rides" like welfare. HESS acknowledged that he heard stories about CHIEF NUCERA using the word. Sergeant ROOHR heard CHIEF NUCERA say it but HESS never heard CHIEF NUCERA say it. CHIEF NUCERA did make negative remarks about Middle Eastern people. HESS recalled an incident, possibly in 2013, involving Sergeant NUCERA. The incident was a car stop involving two women on Route 130 during which Sergeant NUCERA said he had a fight occurring. The driver and passenger were fighting one another. HESS saw the dash camera video which showed Sergeant NUCERA giving a "flying elbow" to one of the women. Sergeant NUCERA was proud of what he did. The woman suffered a possible laceration to her head from Sergeant NUCERA's elbow causing her to hit the asphalt(ground). GA012 Case Document 38-1 Filed 10/01/18 Page 14 of 156 PageID: 377 (Rev. 05-0840) 282A-NK-2108117-ELA CominuationofFD-BOZof (U) RICHARD HESS 02/23/2017 3 of 5 Lieutenant MOUNT recently said that he found five internal affairs cases sitting on CHIEF NUCERA's desk. The cases were against Sergeant NUCERA and the disposition for each case was sustained. Each case needed to be approved within 45 days for discipline otherwise the cases would be voided. It was unclear if CHIEF NUCERA took the appropriate action. HESS advised that he has a close relationship with Sergeant NATE ROOHR. During the summer of 2016, Sergeant ROOHR told HESS to start documenting his interactions with CHIEF NUCERA which HESS did. HESS indicated that on his own, beginning on 12/11/2014, he began documenting CHIEF NUCERA's actions using his phone. HESS documented an improper look-up on CJIS requested by CHIEF NUCERA. He documented that CHIEF NUCERA was working an off duty overtime detail at the PETRO TRUCK STOP and asked HESS to look-up a registration plate on a vehicle that was parked at the PETRO TRUCK STOP. HESS was the Bordentown Police Department's first SRO. HESS commented that he was not allowed to carry his firearm on his side because CHIEF NUCERA wanted him to use an ankle holster. CHIEF NUCERA also required HESS to use his benefit time when the students were off from school. HESS recalled CHIEF NUCERA yelling and cursing at him for being in the SRO office working on a day when the students were off from school. CHIEF NUCERA told HESS to get to the police station and work court matters. HESS recalled a 2009 incident from his notes. HESS went by the Bordentown Township garage and observed GEORGE LNU and STANLEY LNU swapping an engine and transmission from a State of New Jersey car into a Bordentown Township police car. This occurred possibly on a Sunday. The bad engine and transmission came from the police car and was put into the state car. The state car came from the state auction in Ewing, New Jersey and was being returned to the auction so it could be sold with the bad engine and transmission. STANLEY LNU has stripped alternators and other parts out of state cars for use in Bordentown Township police cars. Recently, GEORGE LNU told HESS that he has swapped out engines and transmissions from state cars for use in Bordentown Township police cars dozens of times. HESS explained that road details are often on duty overtime details. HESS also indicated that he filled out an on duty overtime slip because he worked a detail at the Northern Burlington Regional High School. HESS acknowledged that he worked at N.A.D. in plainclothes and upon finishing, he had to change back into his uniform. HESS never worked overtime at the State of New Jersey auction in Ewing, New Jersey. HESS commented, "As long as I wrote tickets, NUCERA) was okay with me." HESS recalled what occurred in November, 2016, after he called out sick GA013 Case Document 38-1 Filed 10/01/18 Page 15 of 156 PageID: 378 (Rev. 05-08-10) 282A-NK-2108117-ELA ContinuationofFD-3020f (U) ERICH RICHARD HESS 02/23/2017 4 of 5 .hy the day before Veteran's Day. HESS realized that his pay was short. HESS contacted DONNA and asked why his pay was short. She pulled his time sheet which explained via a note that HESS had violated a standard operating procedure(SOP). HESS went to see CHIEF NUCERA, who knew he was coming. CHIEF NUCERA pulled out a highlighted copy of the SOP regarding the need to get a doctor's note. HESS told CHIEF NUCERA that he would get a doctor's note. HESS complained that the pay mistake was close to his wages being "garnished." HESS walked out of the meeting with CHIEF NUCERA. Later that evening when HESS came back to work, Sergeant ROOHR told him that CHIEF NUCERA wanted to see him. HESS decided to record the meeting with CHIEF NUCERA. CHIEF NUCERA had a "write up" sheet in one hand and a pay check in his other hand. CHIEF NUCERA wanted him to sign the "write up" sheet in order to get the rest of his pay check. HESS played the recorded meeting with CHIEF NUCERA for the agents. HESS advised that he recorded six conversations with CHIEF NUCERA. HESS described Detective Sergeant SAL GUIDO and his relationship with CHIEF NUCERA by saying, "No beefs but more like a yes man." HESS commented that he always thought Sergeant ROOHR was a "yes man" but after Sergeant ROOHR talked to him about recording CHIEF NUCERA, he realized was just playing the game to get Frank." HESS described the game as not being adversarial with CHIEF NUCERA. HESS also described Sergeant ROOHR as a good officer willing to do the right thing. CHIEF NUCERA required tickets. Forty-five would keep an officer in good standing with CHIEF NUCERA. Sergeant ROOHR was told by CHIEF NUCERA that he wanted traffic violations written up not warnings being given. HESS recorded a conversation with Sergeant ROOHR that was about something Sergeant ROOHR was told by CHIEF NUCERA. HESS played the recording for the agents. CHIEF NUCERA was recorded discussing his request to have tickets written for violations at the Route 206 and New Jersey Turnpike connection. HESS played the recording for the agents. HESS recalled a mutual aid call for a fight in Roebling, New Jersey. CHIEF NUCERA and HESS drove up next to one another and CHIEF NUCERA said that kind of Call would not have happened in Bordentown Township because he would have stopped every car entering Bordentown Township and figured out why they were in the township later. HESS recalled a fight that occurred at the PETRO TRUCK STOP while CHIEF NUCERA was at the police station talking to BRUCE HILL. CHIEF NUCERA was supposed to be working the off duty overtime detail at the PETRO TRUCK STOP GA014 Case Document 38-1 Filed 10/01/18 Page 16 of 156 PageID: 379 (Rev. 05-08-10) ContinuationofFD?BOZof (U) ERICK RICHARD HESS 02/23/2017 'mc 5 of at the time of the fight. The victim of the fight went into cardiac arrest several times while being transported in an ambulance. HESS commented that CHIEF actions did not sit well with him. HESS advised that he called the Burlington County Prosecutor's Office to file a complaint. HESS spoke with Detective JOHN Detective wanted HESS to come in and provide a written statement. HESS told Detective that he gave them everything they needed to investigate. HESS did not want to provide a written statement due to his fear of retaliation. Sergeant FRANK NUCERA is a hot head and he likes to throw his weight around. Sergeant NUCERA is arrogant all of the time. HESS advised that he just ignores Sergeant NUCERA for the most part. HESS wonders how the other officers can trust Sergeant NUCERA moving forward and how it could be possible that he did not know everything that his father, CHIEF NUCERA, was doing. Sergeant NUCERA recently yelled at Officer RYAN FORSTER regarding a traffic detail schedule that Sergeant NUCERA was putting together. Officer FORSTER did not call Sergeant NUCERA back therefore Sergeant NUCERA scheduled Officer FORSTER's days off without his input. The argument was heated. Officer FORSTER called Sergeant NUCERA and Sergeant NUCERA responded by telling Officer FORSTER to only refer to him as Sergeant NUCERA. When Officer FORSTER tried to walk away, Sergeant NUCERA told him that he was not dismissed. HESS advised that he does not trust Sergeant NUCERA. HESS allowed the FBI to download a file labeled, "Frank Nucera Jr. Documentation" from his laptop computer to a USB drive. The file contained audio recordings, screenshots, and documents. HESS also provided 15 pages of his notes. GA015 Case Document 38-1 Filed 10/01/18 Page 17 of 156 PageID: 380 OFFICIALJESOID 1:13.302 (Rev. 5-8-10name 1- 9m r. I 0 r1 arm: ?Hm-.5 mar. FEDERAL BUREAU OF INVESTIGATION Duememw 02/22/2017 BRIAN VINCENT PESCE, date of birth social security account interviewed inside the Federal Bureau of Investigation (FBI), Newark Division, Trenton Resident Agency (TRA), on Tuesday, 02/07/2017, by Special Agent (SA) Vernon I. Addison and SA Arthur E. Durrant, FBI. PESCE provided the following information: In or around 1998, PESCE was hired as a police officer by the Bordentown Township Police Department (BTPD). In or around 2000, PESCE was detailed to the Burlington County Prosecutor's Office (BCPO) to work drug investigations. In or around 2001, PESCE returned to the BTPD and was promoted to Detective and assigned to the Detective Bureau. In or around 2003, PESCE was promoted to Sergeant. In or around 2009 or 2010, PESCE was promoted to Lieutenant. In the Summer of 2015, PESCE was promoted to his current rank of Captain. Former BTPD Police Chief FRANK NUCERA, JUNIOR (NUCERA) recently retired. PESCE is currently in charge of the BTPD until a new police chief is appointed. PESCE has known NUCERA for many years. NUCERA yelled and used profanity. NUCERA yelled at citizens and police. NUCERA used racial slurs when talking about citizens. PESCE knows there are allegations of excessive force by NUCERA. PESCE believes NUCERA had the tendency to "reignite everything" when he arrived on a scene usually because of the way he talked to people. In or around 2001, PESCE was a detective and set up a "drug rip" to occur in the area of ShopRite in Bordentown. There was a "mini pursuit" and LARRY DRIVER (phonetic) and his girlfriend were ultimately arrested. NUCERA was not involved in the operation. However, he was working an off duty, overtime assignment at the ShopRite. NUCERA reportedly witnessed DRIVER attempt to flee and he intervened as well. NUCERA allegedly threw his flashlight at windshield. EVAN JONES was a police officer involved in the arrest. JONES reportedly witnessed NUCERA "kick the guy or something." PESCE did not witness the alleged assault because he was not in a position to see it. JONES filed a complaint with the BCPO against NUCERA. The matter was investigated by Lieutenant DEBBIE LIGHTENBURGER (phonetic) at the BCPO. PESCE and other BTPD police officers were interviewed. NUCERA was not charged with any criminal or administrative charges. JONES 02/07/2017 ., Hamilton, New Jersey, United States (In Person) File? 02/10/2017 DURRANT ARTHUR E, Vernon I. Addison This document contains neither recommendations nor conclusions of the FBI. It is the property of the FBI and is loaned to your agency. it and its contents are not to be distributed outside your agency. GA016 Case Document 381 Filed 10/01/18 Page 18 of 156 PageID: 381 (Rev. 05-0840) 282A-NK-2108117 BRIAN V. PESCE interview on - - 02/07/2017. 02/07/2017 2 of 7 Conunuatnonso?tigJS-IgaIglial I I al?fgeh 3 I i problems. PESCE considered JONES to be a honest person and a good police officer. JONES was a K9 officer and the police union president. In or around the Fall of 2016, Lieutenant MOUNT arrested a female in court for disorderly conduct. The female was brought down to the police station in handcuffs. She was yelling and was uncooperative. NUCERA came out of his office and grabbed the female. He yelled at PESCE to "get more involved." NUCERA then directed the officers to handcuff the woman to a bench with her arms extended away from her body. She looked like "she was on a cross." The woman knelt down with her wrists handcuffed and extended and cried. She "looked like she was in crisis." PESCE walked into NUCERA's office and told him that he was going to take the woman to a hospital or crisis center. NUCERA allowed PESCE to have the woman taken to a crisis center. PESCE thought NUCERA should have recognized that the woman was in "crisis." PESCE does not know what happened to the woman but she did not file a complaint against any of the police officers. PESCE thinks NUCERA doesn't believe in "verbal judo." Instead, NUCERA orders people and makes people do what he wants by force. NUCERA "demeans people" and is "nasty to the public." PESCE is aware of an incident at the Ramda Inn involving NUCERA in or around September of 2016. PESCE was not there so he did not witness the incident. TERRY COWEN, the manager of the Ramada Inn, "texted" or called PESCE. COWEN and PESCE had been friends for years and she provided him and other police officers with great intelligence about criminal conduct at the Ramada Inn. COWEN told PESCE that NUCERA was "mean" to her. PESCE apologized for NUCERA's conduct. BTPD Police Sergeant ROOHR then made an allegation of excessive force against NUCERA at the same incident at the Ramada Inn. ROOHR came to discuss the matter with PESCE no more than a week after the occurrence. ROOHR told PESCE that NUCERA was combative and condescending to the family of the suspect. ROOHR said NUCERA pushed the male suspect's head into a door jam. ROOHR said it was "totally unnecessary and unwarranted." ROOHR said the suspect complained of a possible concussion. ROOHR also told PESCE that he had been recording conversations with NUCERA. He said NUCERA used racial slurs. NUCERA reportedly made comments to ROOHR such as "sick the dogs on those people" and could just shoot one of these people." ROOHR appeared disturbed by the event. PESCE said, "It was obvious the incident bothered him." PESCE suggested that ROOHR consider filing a formal complaint and bring forth all of the allegations of misconduct he had. PESCE then started to work on addressing all allegations about NUCERA. When queried by SA Durrant about how PESCE felt when he learned about GA017 Case Document 38?1 Filed 10/01/18 Page 19 of 156 PageID: 382 (Rev. 05?08-10) uncussurn/lmouo 282A-NK-2108117 BRIAN V. PESCE interview on - 02/07/2017. 02/07/2017 3 of 7 - - "last resort." PESCE said, was sympathetic." PESCE believes no one knows ROOHR filed a complaint against NUCERA and no one knows that ROOHR recorded his conversations with NUCERA. PESCE asked for ROOHR's tapes with NUCERA on the evening at the Ramada Inn. NUCERA told PESCE that he met with the Bordentown Township Mayor and learned that there was an allegation against him. NUCERA told PESCE he thought the suspect's aunt taped him while he was going off on one of his "rants." NUCERA also referred to his statements as "dinner time conversation." PESCE knew NUCERA used insensitive rhetoric racial slurs. He commonly used "you people" or "those people" when speaking about black people. PESCE recalled that Bordentown Township High School (BTHS) had a good basketball team. BTHS played Willingboro High School (WHS). PESCE was sitting at his desk and NUCERA said words to the effect of, "We're going to have dogs working that night because those people don't like dogs." PESCE thought was had a predominantly black team and he understood "those people" to mean black people. PESCE thought that was common rhetoric for NUCERA. NUCERA had stereotypes and he verbalized them. For example, NUCERA would say, "Indian people smell" and "Black people don't like dogs." PESCE has heard NUCERA use the words "nigger" and "moulinyan" to refer to a black person. He has heard him use the words "towel heads" to refer to people of Indian descent. PESCE has heard NUCERA use the words "faggot" and "spics." PESCE recalled NUCERA used to say that the NJ Department of Motor Vehicles (DMV) was run by "towel heads" because it seemed to NUCERA that many Indian people worked there. When queried by SA Durrant as to why PESCE did not take any action to report NUCERA's conduct, PESCE stated he was "petrified of the guy." NUCERA "had all the power" and he "held all the cards." NUCERA had ended the careers of other police officers who disagreed with him. An anonymous letter went to the Bordentown Township Committee describing how NUCERA was a bully and created a hostile work environment and nothing happened to NUCERA. NUCERA never had any criminal or administrative complaints substantiated by the BCPO. For example, in or around 2009, a complaint letter was submitted to the BCPO about NUCERA for allegations involving overtime. Lieutenant LIGHTENBURGER and PESCE met and discussed the allegations. She made verbal recommendations for PESCE to discuss with NUCERA. NUCERA did not adopt any of the recommendations. NUCERA would sometimes say, "Fuck the county." The NJ Attorney General's Office (AGO) has guidleines that police GA018 Case Document 38?1 Filed 10/01/18 Page 20 of 156 PageID: 383 (Rev. 05-08-10) 282A-NK-2108117 BRIAN V. PESCE interview on - - 02 07 2017. 7 l/l . (4ng 02/.0 /2017 Me 4 of 7 recommendations." For example, NUCERA was "totally against body cameras" on police officers. NUCERA determined when BTPD officers could activate and deactivate the recording devices. The NJ AGO conducted a criminal investigation of NUCERA for allegations of billing fraud. The case agent at the NJ Division of Criminal Justice, TONY LUBER, reportedly said the case was closed without any criminal charges against NUCERA "for political reasons." LUBER is presently an investigator with the BCPO. PESCE and other police officers "lost faith." Former BTPD police officer wanted to address the problems with NUCERA. was forced to retire for a medical reason. NUCERA sent former BTPD to a doctor for a mental evaluation after they had a disagreement. There were also rumors in the past couple of years that NUCERA was going to retire from the police department. BTPD officers were hoping that he would just retire. ROOHR made his complaint and decided to put "pen to paper." PBSCE packaged everything together. PESCE was supposed to present the allegations to the BCPO on 11/18/2016 when SA Addison contacted him. PESCB did not feel he was responsible for investigating NUCERA. His priority was packaging the allegations and submitting them to the county. PESCE "was scared" of NUCERA himself. PESCE recalled that FIRST NAME UNKNOWN (FNU) PBNNIX (phonetic) complained about NUCERA. PENNIX was at the Best Western Hotel in Bordentown Township. NUCERA responded to the Best Western one day and reportedly said "you people" to PENNIX who is black. When queried by SA Durrant about positive information about NUCERA, PESCE said that NUCERA was "not all bad." PESCE thought NUCERA "loved" Bordentown Township. NUCERA was, at times, "compassionate." NUCERA paid for a hotel room for a woman whose house was destroyed by fire. NUCERA did not appear to be comfortable in social situations. For example, NUCERA would leave retirement events early. PESCE also knows BTPD Police Sergeant FRANK NUCERA (NUCERA PESCE believes NUCERA is a good police officer. He is proactive but he has a quick temper and has received demeanor complaints. NUCERA is a "great guy to hang out with." PESCE has never heard NUCERA use any racial slurs. PESCE considers NUCERA to be "salvageable." NUCERA was also the Business Administrator for Bordentown township (BT). NUCERA told PESCE he "ran the city like a business." NUCERA allowed very little police overtime even though overtime was budgeted. NUCERA wanted GAO19 Case Document 38-1 Filed 10/01/18 Page 21 of 156 PageID: 384 ?31302:. (Rev. 05.08.10) Case Document 38-1 Filed 10/01/18 Page 22 of 156 PageID: 385 (Rev. 05418.10) PESCE believes there is a BTPD policy which prevents police officers from talking to BT committee members without prior approval. PESCE believes a police officer would be questioned by NUCERA if a police officer attended a committee meeting. Case Document 38-1 Filed 10/01/18 Page 23 of 156 PageID: 386 515-3023 (Rev. 05-08-10) 282A-NK-2108117 BRIAN V. PESCE interview on ?mi"?mn 02 07/2017 to serve as their police department. When NUCERA learned Fieldsboro chose BCPD instead of BTPD, NUCERA said words to the effect of, "Fuck them. Don't back Bordentown City." PESCE understood this to mean that NUCERA did not want any BTPD officers backing-up any BCPD officers on car stops or incidents. That order remained in effect until NUCERA retired. NUCERA had some involvement in the BTPD hiring process. PESCE recalled that NUCERA wanted to hire a female officer. PESCE thinks NUCERA did not hire a police candidate because NUCERA was not happy with the candidate's brother, who was a committee candidate. VITO RENA wanted to become a BTPD officer. He was ranked number two on this list. PESCE thinks NUCERA "skipped" him because he did not like his brother. NUCERA's cellular telephone was owned by and paid for by BT. NUCBRA used telephone number -0510. NUCERA would send blast emails to officers' cell phone numbers from his email address. NUCERA used the email address If an officer used force to effect the arrest of a resisting subject, NUCERA would say words to the effect, "Fuck them. They got what they deserved." Detective Sergeant SAL GUIDO was very afraid of NUCERA. GA022 Case Document 38?1 Filed 10/01/18 Page 24 of 156 PageID: 387 This complaint is being ?led on behalf of several Bordentown Township Police Of?cers who can no longer tolerate being subjected to racist behavior and hostile work conditions perpetrated by Chief Frank Nucera Jr. It is the Township Committee's duty to thoroughly and objectively investigate all the allegations made in this complaint and should be reminded that Attorney General Guidelines mandate that all complaints of of?cer misconduct need to be investigated even those derived from anonymous sources. The of?cers who ?le this complaint have no desire to remain anonymous, however, and will cooperate with any formal investigation or administrative procedures undertaken by the Township. The rank and file officers employed by Bordentown Township have always sought a harmonious relationship with the Township Committee. It is for that reason that a hostile work environment lawsuit has not yet been ?led despite the ovenivhelming instances of intimidating, hostile and offensive conduct that of?cers have to deal with on a daily basis. If the Township Committee fails to take immediate action then these of?cers will have no recourse but to move forward with legal action. The Chiefs behavior is indefensible and not representative of this police department as a whole. This behavior has been occurring for some time but the Chiefs role as acting Township Administrator, essentially his own boss, has failed to provide of?cers with a mechanism or counter-measure to report the abuse. Recent work-place harassment training provided to of?cers by the Burlington County Joint Insurance Fund has led us to understand that our jobs will not be in jeopardy for bringing these complaints to light and it is in fact our duty to do such. or RACIST The below examples are in no way a comprehensive list of racist acts committed by Chief Nucera and are merely a snapshot of the types of offensive rheton?c omcers are subjected to on a daily basis. Of?cers have been maintaining journals of all racist statements they have witnessed the Chief make and are prepared to testify about that complete history of prior bad acts in a civil trial or administrative law hearing. Several of these incidents were audio recorded by of?cers which in no way violates any law or BTPD policy or procedure. NJ is a one-party consent state and the BTPD has no policy which prevents the taping of your co-workers. To the contrary the police department outfits it?s of?cers with dashboard cameras and body microphones to record unlawful behavior and the Chief previously had signs posted predominantly throughout the police department warning that audio and video recording was in use at all times. Finally all of these conversations were recorded while the Chief was on-duty, typically in full uniform performing police functions. This GA023 Case Document 38?1 Filed 10/01/18 Page 25 of 156 PagelD: 388 is not ?locker room talk? happening after hours but is representative of how the Chief behaves while at work on a regular basis. Incident On 1-30-2016 an Of?cer was ordered by Chief Nucera to drive through the Team 85 Campus to see if they were open and report back to him with my ?ndings. On 1-31-2016 the of?cer responded into the Chiefs of?ce to advise him of his/her ?ndings. The of?cer advised the Chief him that he/she observed the Team 85 Campus parking lot full for most of the day on Saturday with patrons coming in and out of the building. Chief Nucera then stated can't believe he did that, fucking nigger! I told Kevin he is crazy to let people work out on that equipment, because if they get hurt, he will get sued, and they will own it.? Incident On 3/5/16 the Bordentown Regional High School Boys? Basketball team played Willingboro in a Central 2 semi?nal game at Bordentown Regional High School. This was anticipated to be a well-attended event with numerous spectators from both schools attending. The Chief, who is responsible for ?lling requests for off-duty security, told one of his of?cers that he would be sure to schedule several K9 of?cers to work this event because "those people" don't like dogs and would be more likely to behave if dogs were on location. The of?cer, who did not respond to this statement, interpreted it to mean that African-American spectators from Willingboro did not like dogs. The of?cer found this statement to be discriminatory and offensive. Incident Marked on disk as recording #5 On 4-30-2016 while working an outside employment detail at the Bordentown Regional High School an of?cer was having a conversation with Chief Nucera in the main of?ce about the drug addiction epidemic in the US. During this conversation he made the following statements: 29:20 ?Here?s the real deal, this is what gets me, we had the gays and lesbians that want to fuck each other in the ass and they come up with AIDS. The government spent tons of money on AIDS ok, it?s whatever is in the lime light. Ok so if they want to push that we are going to lose an entire generation, then they will spend money on some type of treatment. I understand just like being gay and lesbian is a fucking choice, so is doing drugs a choice. You spend all this money so they can fuck each other in the ass, what are you going to do with the kids on drugs?? 36:00 GA024 Case Document 38?1 Filed 10/01/18 Page 26 of 156 PagelD: 389 ?i went to fucking Verizon today, one white guy, four fucking Indians working, what the fuck? 43:00 ?All the fucking towel head countries are taking it on the chin, they are having their own recessions.? 45:40 "Once the fucking Indians get in, and once there born and bred here they can get in, once they get in we will be completely fucked, because they will take care of their own. A white fucking American will be fucked.? lgcident On 7-17-2016 at approximately 1405 hours Chief Nucera called an Of?cer into his office and asked how his/her vacation was. The officer advised him that he/she had a great time camping with his/her family and asked the Chief if he had been away as well since the Officer hadn?t seen him in a few days. He replied wasn?t on vacation, well I was in DC on Friday, I got invited to the Whitehouse, me and about seventy-?ve other police chiefs, i even got to see the president.? The Officer asked if he met Philadelphia Police Chief Charles Ramsey and asked what he thought of him? Chief Nucera said he?s ok look he gave us a box of candy, then the Chief pointed to a small decorated box of candy placed on the front of his desk. He then stated hey had this other guest speaker, you know, a real nigger, who spoke about equality, and how if a white person goes to the bank for a loan he may get a 2% interest rate and a black person with the same credit goes to the same bank for the same loan they may get i thought, that? not my fucking problem, go to the fucking banks and ask them why they do that! Then they were talking about community policing and dedicating more of?cers to community policing, and i asked who?s going to pay for it, and the feds say they got no money, it falls on the municipality, it?s all bullshit, they want you to do this, they want you to do that, but they don?t want to give up any money. During this conversation another of?cer who is African-American was in the station processing an arrest and it is possible that he may have overheard Chief Nucera?s racial slurs. Incident #5 Ma?ed on disk as recordng #9 On 7-20-2016 an Officer received a call from Chief Nucera regarding a wedding that had been held in the courtroom attended by numerous lndian-Americans. The Chief stated: GA025 Case Document 38-1 Filed 10/01/18 Page 27 of 156 PagelD: 390 I just got a call that there is food trash all over the parking lot where the employee's park. The judge had a wedding today and it looked like the United Nations up there. If they threw trash onto the ground, they are getting charged. I know what the people look like from the wedding, I?ll get court to verify it and then I?m going to send them an ordinance violation for littering. Incident Marked on disk as recording #25 On 9-1-2016 after the arrest of a juvenile black female (TM) and 18 year old black male at the Ramada Inn, Bordentown Township Police case#2016-6065, Chief Frank Nucera Jr. Badge#3200 made the following statements in his of?ce in the Bordentown Township police station located at 1 Municipal Drive Bordentown 28:05? stated, think I have a concussion, so can you call somebody?? An Of?cer asked where he had pain and- replied my head, my back, my shoulder and my eye. The Officer immediately had an ambulance dispatched to treat Mr. - 39:28 The Officer advised Chief Nucera that he called for EMS since Mr.- complained of head pain. The Chief replied good, he's lucky that?s all he got. 42:00 Female EMS personnel stated to the Officer and Chief Nucera, I told him it?s not going to delay the process of going to jail and he still wants to go to the hospital. His lungs are clear, I mean his face is swollen, he has mace on him it?s probably the issue. 50:15 Chief Nucera said to an Of?cer I?m fucking tired of it man, I?ll tell you what it?s getting to the point where I could shoot one of these mother fuckers and that nigger bitch lady, she almost got it. Get back, I?m her aunt, I said get back, don?t yell at me, I?m telling you you?re getting close to getting thrown on the fucking floor too, get back, that? 5 my niece. I said I don?t care who the fuck it is, get fucking back, don?t yell at me, one more time. Fucking nipple hanging bitch, I?m so tired of it man. I?m telling you, you know what, I?m going to tell you, Donald Trump is the last hope for white people, because Hillary will give it all to minorities to get a vote, that?s the truth, I?m telling you, I think about it more and more. He is, he?s the last hope for the fucking white people, because she got all the seven mother? at the Democratic National Convention saying the police killed my kids. The fucking guys, the father for the guy at the Orlando Night Club was sitting in the audience. She?ll sell the vote to whoever she can, Guatemalan?s, Russian?s, Nicaraguan?s, spics, blacks, you GA026 Case Document 38-1 Filed 10/01/18 Page 28 of 156 PagelD: 391 name it. He?s the last hope for the white people. I?m telling you, I?m telling you, i?ve been thinking about it more and more. 52:20 These fucking people, where they from? There from Trenton, stay the fuck out of Bordentown. Now you can go home and tell em, if you go to Bordentown, I?ll just. You know what it would have been nice if that dog could have come up. They would have stopped quick then. That fucking dog, that dog would have stopped anything right then and there. (Chief Nucera making barking sounds). I'm telling you, you?d of seen two fucking niggers stop dead in their tracks. I love that, when they do that, I luuwe that. it would have been nice they would have backed right off. Same incidentI segarate recording. Following exchange marked as recording #27. On 9-1-2016 Chief Frank Nucera Jr. backed an Of?cer up at an alarm activation at .laron?s Furniture on Rt. 206. After checking the exterior of the building and con?rming it to be secure Chief Nucera pulled next to the Of?cer?s patrol vehicle and made the following statements: 1:15 They just released Shawn (Lt. Mount), his backs fucked up, he?s got to go to a specialist, and uh evidently this guy punched the shit out of his fucking kidneys, kidney, black and blue, it doesn?t have any blood in it but, punched it pretty fucking good. Fucking little fucking nigger, he was built pretty stocky though. When you put cocoa butter on that skin and come out of the pool it's like trying to hold down a fucking snake. The manager of the Ramada Inn, Terri Cowen, was apparently extremely upset with the way the Chief treated her during this incident and informed Officers that she filed a complaint with a Township Committee member. Cowen indicated that the Chief demeaned her at the scene and repeatedly said, ?This is the type of clientele you rent She interpreted this to be a racial statement and that the Chief was suggesting she shouldn't rent rooms to people of African-American descent. To the best of our knowledge this complaint was never addressed by the Committee with the Chief nor was an investigation initiated to ascertain if this was an isolated issue or part of a broader pattern of behavior. Incident On 11-16-2015 an Officer was contacted b_ who advised that he was pulled over on the Stanton Avenue extension with a flat tire on his patrol vehicle. The Of?cer reSponded to - location to evaluate the vehicle since he was unsure of the reason for the blown out tire. Upon inspecting the vehicle, the Officer observed that the vehicle had a one inch cut in the sidewall that was not consistent with running over debris. The Of?cer then contacted Chief Nucera and advised him of the possible criminal mischief to the patrol vehicle. Chief Nucera advised that they arrested a subject on night shift and he returned to BTPD headquarters GA027 Case Document 38-1 Filed 10/01/18 Page 29 of 156 PagelD: 392 several times throughout the shift with questions and was unhappy with the officers who arrested him. The Of?cer was Instructed by the Chief to contact our Public Works and have them respond and replace the tire. He next instructed the Of?cer to respond to headquarters to check all of the patrol vehicles for signs of criminal mischief. He then stated "If you find any damage, have Sal watch the tapes, and if that little ?Nigger? went near those vehicles, he is getting charged This Of?cer was standing In the vicinity of who is African- American, when the Chief made this remark and was appalled by this racist statement. The Officer then responded to headquarters and began checking the patrol vehicles for signs of criminal mischief. All of the vehicles appeared to be in good order with no signs that they were tampered with. Chief Nucera pulled up to the rear of headquarters at approximately 0825 hours and asked the Of?cer if he found any damage to the vehicles. The Of?cer advised him that none of the vehicles were damaged. He advised that he was going to have Sal review the security video to see if the individual tampered with vehicle overnight. Chief Nucera was visibly agitated, noting that his forehead was wrinkled and his face was red. He stated wish that nigger would come back from Trenton and give me a reason to put my hands on him, I?m tired of em. These niggers are like ISIS, they have no value. They should line them all up and mow em down. I?d like to be on the ?ring squad, I could do It. I used to think about if I could shoot someone or not, i could do it, I'm tired of It!? The Officers informed his supervisors of the incident and advised them that he feared Chief Nucera would retaliate against him if he reported his conduct. Incident #85 On 11/2/16 a black male adult named Shuntell Penix responded to headquarters to ?le an internal affairs complaint against Chief Nucera. Mr. Penix advised that he was arrested for domestic violence assault following an incident with his girlfriend at the Best Western Hotel on 10/28/16 and was accused of throwing a fruit cup at her head. During the police investigation of the assault at the hotel he indicated that the Chief exhibited racist and hostile behavior towards him. Speci?cally he stated that the Chief made him feel like a ?dunce? by making him stand on a circle in the parking lot and threatened to arrest him if he moved from that circle. He added that the Chief was enraged during the incident and got into Penix?s face and yelled at him so close that spit came from the Chiefs mouth onto his face. Finally Penix indicated that the Chief told him "I?m so tired of you people? which he immediately interpreted to be a racist statement. Penix advised that the Chief? behavior was so offensive that he cried during the Incident. An Officer who was at the scene with the Chief was interviewed and confirmed Penix?s account and substantiated that he heard the Chief make the "I'm so tired of you peeple" remark. GA028 Case Document 38-1 Filed 10/01/18 Page 30 of 156 PagelD: 393 HOST ILE WORK ENVIRONMENT EXAMPLES The below examples are in no way a comprehensive list of hostile acts committed by Chief Nucera against police department employees and are merely a snapshot of the types of treatment Officers endure on a daily basis. Officers have been maintaining journals of mistreatment they have witnessed or have been committed against them and are prepared to testify about that complete history of prior bad acts in a civil trial or administrative law hearing. Example During the month of October 2016 a Detective received notice from the Chief that he had been assigned an off-duty construction detail approximately one (1) hour before the detail started. The Detective complained about this short notice and the Chief accused him of being insubordinate and then threatened to exclude him from future overtime details of this nature. Specifically the Chief stated that since the officer was assigned to a Detective position then maybe he shouldn?t be allowed to work ?patrol? overtime details. The Police Department has no policy in this area and Detectives have always been permitted to work all types of overtime details offered by the PD in the past. There was no doubt that these threats regarding insubordination and future overtime eligibility were in direct response to this of?cer merely voicing his displeasure about the extreme late notice he received about his overtime assignment. This is yet another example of the Chief inappropriately exercising his authority to sti?e a complaint about the manner in which he assigns off-duty employment. Example During the month of November of 2016 the Chief confronted a Sergeant about officers complaining to Township committee members about work-related issues. Specifically the Chief was upset that unknown officers had spoken to committee members about the Finance Department mishandling payroll which resulted in large abrupt payroll deductions from full- time staff at the end of the year to make up for their error. The Chief called the of?cers who spoke to the committee members ?cunts, pussies and faggots? who betrayed him and promised to ?nd out who they were. This same day the Chief informed of?cer that he had an interesting committee meeting the night before and knows some officers have been ?running? to committee members and speaking with them about department issues. He told this officer that he would find out who these of?cers are and promised to ?break a stick off so far up their ass? that they wouldn?t know what to do. The Chief again said there would be dire consequences for anyone he found was talking to committee members and indicated that the committee people ?like to talk? and he would be able to find out the of?cers names from them. GA029 Case Document 38-1 Filed 10/01/18 Page 31 of 156 PagelD: 394 On several occasions in the Fall of 2016 the Chief has informed of?cers that the Township has hired a ?high-priced? labor attorney who plans on ?ghting the unions for everything and anything they seek in upcoming contract negotiations. More speci?cally the Chief recently told the President of the BTPOA that this attorney will be ?going after? the BTPOA. These statements are always unsolicited and often in response to his inability to ?ll an overtime detail. The Chief will routinely tell of?cers in a derogative way that they "make too much money? which is why they don?t sign up for off-duty overtime and promises that he plans on ?xing this during the impending contract negotiations. Of?cers do not feel that they should be subjected to threats concerning contract negotiations from their Chief who participates in the negotiations due to his dual role as Township Administrator. (Example of similar comments marked as recording #23) Exam The Chief's management of off-duty employment for the police department is a major issue of contention. Officers feel that the ultimate priority of assigning off-duty employment should be that it is done in a fair and equitable manner. The Chief has never issued any policies regarding off-duty employment which outline how assignments are awarded and who is eligible. There is no master list that of?cers can refer to in order to see how many hours of off-duty employment they have received and then compare such against their co-workers. This total lack of understanding of the method and transparency in which off-duty employment is assigned has eroded department morale. The inef?ciency and short notice that off-duty details are posted by the Chief also often results in a lack of volunteers who are unable to juggle their home schedule and family obligations in a moment?s notice. Any complaints made to the Chief about these off?duty employment issues are met with derisiveness and a threat by him to end all off. duty details in the future. The fact that he works an inordinate amount of these details also leads to the suspicion that he is inappropriately awarding himself these details for self- enrichment. These suspicions are bolstered by the fact that the Chief will often say that he had to work a detail because no one volunteered when in fact officers have electronic proof that they did in fact volunteer. The off-duty security detail at the Petro Truck Stop is another example of the Chief exercising total control over the management of outside duty. When Petra officials ?rst approached the Chief about having Of?cers perform security at the Truck Stop he claimed that it would be 8 hours a day, 5 days a week including holidays and of?cers would have to sign a contract obligating that they agree to be forced in to work the detail if necessary. This dissuaded several people from initially signing up and turned out to be inaccurate information as the detail is not scheduled on holidays. Of?cers have since asked to work the detail but the Chief contends that GA030 Case Document 38-1 Filed 10/01/18 Page 32 of 156 PagelD: 395 they have to be "unanimously voted in" by the Of?cers who initially agreed to work the detail and so far no new of?cers have been voted in. The terms that the Chief has set to work this detail are not backed by any policy and are unfair to department members. The Petro Truck Stop has an agreement with the Township of Bordentown for its of?cers to work security there and the Chief has no right to preclude anyone from being eligible without just cause. This detail should be available to every of?cer for open bid and the system he created of being ?voted in? is unfair and does not conform with any past practice or precedent concerning department overtime. Sample Within the last two years, on at least twenty occasions, the Chief has taken an of?cer assigned to patrol duties working their normal shift and ordered them to work an off-duty detail in another municipality. For example, if the Chief is unable to ?ll an off-duty security detail at the State Vehicle Auction in Ewing Township he will order an officer working patrol to respond to the Auction and cover that detail for several hours while on duty. This has also occurred in Mans?eld Township on numerous occasions. Of?cers, many of who are Bordentown Township taxpayers, are appalled that the Chief would reduce our manpower and assign of?cers on-duty to work security in other municipalities. These actions leave the Township Police Department vulnerable and understaffed and are completely unnecessary. The Chief refuses to tell these municipalities that he was unable to ?nd volunteers and direct them to look elsewhere to fill their security needs. Example Throughout his tenure as Chief, Frank Nucera has openly expressed his contempt for the Bordentown City Police Department. These feelings were magni?ed after the Fieldsboro Police Department dissolved at the end of 2015 and the Borough entered into a shared services agreement with Bordentown City for police services. Chief Nucera was enraged that Fieldsboro did not contract with Bordentown Township for police services and informed his of?cers that we were to no longer provide any type of backup to City Of?cers. Chief Nucera stated that since the City believed they had enough personnel to police two (2) separate towns then they shouldn't need our assistance and informed of?cers that he doesn't care if they are "screaming for backup? we are not to respond. Chief Nucera also threatened to severely discipline any Township of?cer and their Supervisor if they disobeyed his order and had one Sergeant issue a department wide email reiterating this order (see attached exhibit). Chief Nucera went on to order Township of?cers to effectuate motor vehicle stops of vehicles within the jurisdiction of Bordentown City, to surround the City at times with police vehicles in search of motorists entering or leaving the City with violations and to make high-pro?le stops of motorists on the City?s main thoroughfare (Farnsworth Ave.) in an effort to ?hurt their businesses". GA031 Case Document 38-1 Filed 10/01/18 Page 33 of 156 PagelD: 396 Township Officers were offended by these orders and believed it contradicted their moral and ethical obligation to provide aid to anyone in need, civilian or law enforcement. These of?cers also resented being drawn into what was obviously a personal vendetta the Chief has against Bordentown City and believed that he is abusing his power by enacting this order. Township Of?cers feared retaliation if they spoke up against this order but had no process to complain since the Chief acts as his own supervisor in the role of Township Administrator. E?mgle In the Spring of 2016 the Chief was scheduled to work an off-duty security detail one morning at the Petro Truck Step but left his post and returned to headquarters. He never entered the station and appeared to wait for this squad, unbeknownst to them, in the rear police lot. After the squad completed their roll call they exited police headquarters and headed to their marked units to begin their tour of duty. A few members of this squad did not have their ties clipped on yet and were wearing them on their collars. The Chief hid behind a department speed sign trailer and jumped out on these of?cers and began screaming at them for not properly wearing their ties. This type of bizarre and hostile behavior is unfortunately the norm for employees of the Bordentown Township Police Department. Example On 8/4/16 and 8/5/16 Chief Nucera ordered an of?cer to conduct surveillance on a Township employee who had called in sick after he denied her bereavement day in his role of Township Administrator. The Chief was incensed and feit that this employee was abusing sick time. This was not a police department employee and is actually a civilian secretary who works in the Township?s construction of?ce. The Chief ordered the of?cer to surveil her residence for sixteen hours in an effort to catch her leaving the home while supposedly sick. He even directed the of?cer to remain at the home on overtime during the second day. This is an egregious abuse and mismanagement of police resources for a non-criminal matter. Once again of?cers fear retaliation if they speak out against such an order because of the Chief?s dual roles as Police Chief and Township Administrator. For at least the past five years the Bordentown Township Police Department has failed to follow the NJ Attorney General?s Guidelines on ?rearms quali?cations in regards to the Bushmaster .223 semi-automatic ri?es Chief Nucera issues to each officer. The Attorney General Policy clearly mandates quarterly training on these ri?es, two of which may be used for quali?cation purposes. Bordentown Township P.D. Firearm instructors have scheduled these quarterly range dates only to have Chief Nucera consistently cancel two of these sessions each year despite opposition from his own instructors. The Chief claims that the NJ Attorney? 5 GA032 Case Document 38-1 Filed 10/01/18 Page 34 of 156 PagelD: 397 General Guideline is merely a ?recommendation? that he doesn?t have to follow. This deliberate disregard of the rules established for the proper carrying of these ri?es makes the department extremely susceptible to potential liability and inadequately prepares police personnel in the event they need to utilize these weapons during their course of duty. Examgle #10: Over the course of the last year the Chief of Police has intentionally withheld pay of at least three BTPD officers as a disciplinary measure. The Chief has informed the Police Department employees that there is a US Department of Labor rule which entitles him to pay an employee only the Federal minimum wage rate ifthey fail to submit a time sheet at the end of their bi~ weekly pay period. . On at least two occasions in the past year the Chief has paid Of?cers only this minimum wage rate and not their contractually obligated and negotiated salary after they failed to turn in their time sheets. On the third occasion the Chief withheld an entire day's pay from an of?cer for a perceived procedure violation. In each of these instances he has taken these measures without warning or due process of these of?cers. They have never been noticed that disciplinary action was being taken against them or an investigation had been initiated. The only way they discovered that this measure had been done was when they received their pay check and realized it was grossly short of their regular earnings. The Chief has repeatedly stated that if "they want their money than they can come into his of?ce and ask him for it". He has essentially created a situation of absolute power and control over his officer's financial well- being and their only recourse is to grovel at his feet and beg for the issuance of their full pay. Needless to say this is a very humiliating and demeaning experience for these of?cers. These retaliatory and hostile actions violate both the departments and Attorney General Guidelines on Internal Affairs, specifically in the areas of complaint noti?cation and progressive discipline. It is unheard of that a department administrator would advance to a monetary ?ne of an employee for a ?rst offense without any notice to that employee whatsoever. Department employees have also checked with the US Department of Labor and they advised that there is no such rule as claimed by the Chief. The fact that the Township's treasurer who is responsible for payroll condones this behavior without any checks and balances further illustrates the type of absolute power the Chief has over all areas of Township government. Examgle #11: The Chief routinely subverts chain of command and regularly disparages Supervisors to their subordinates. In one instance an of?cer asked the Chief if he had the opportunity to review a compensatory time request he had submitted and added that a Police Lieutenant had already signed off on the request and ensured that it wouldn't cause a manpower shortage or any other GA033 Case Document 38-1 Filed 10/01/18 Page 35 of 156 PagelD: 398 department issues. The Chief then unleashed into an unprovoked tirade and informed the of?cer that the Lieutenant's signature "didn't mean shit" and this Lieutenant had no authority and that this was "his" department. These type of antagonistic tirades weaken a supervisor's effectiveness and have helped erode the department's chain of command. Example #12: On 3/7/16 the Bordentown Regional High School Boys? Basketball team played Manasquan in a sectional ?nal game at Bordentown Regional High School. This game was well-attended and the BTPD provided off-duty security for the event. The Chief was one of these of?cers and exploded on school of?cials working the event when he believed that they were continuing to allow spectators in after reaching the gym's capacity. What the Chief didn't realize and didn't bother to ask is that the School had pre-sold tickets to the game and was only letting people in with these types of tickets. This pre-sold group had also already been factored into the capacity number. The school employees complained to other of?cers working the event about the Chief's aggressive and disrespectful demeanor and Township Committee members were also made aware of this outburst but failed to follow-up and take any action. Example #13: On 9/8/15 the Chief was scheduled to work an off-duty security detail at the Petro Truck Stop from 5pm - 10pm. The Chief left the detail, which he routinely does, and drove to the rear parking lot of the police department where he spoke with a former committee member for approximately 45 minutes. After he left the detail a vicious road rage assault happened in the rear parking lot of the Petro between two truck drivers which left one driver severely injured. This assault was observed by Petro employees and other truck drivers who reported it via 911. If the Chief hadn?t left his post his mere presence at the truck stop would have possibly prevented this assault from occurring and at the very least he would have apprehended the aggressor before he was able to ?ee the scene. Of?cers were appalled by the Chiefs neglect of duty and reported such to the Internal Affairs Unit of the Burlington County Prosecutor? 5 Of?ce. Nothing was ever done by the Prosecutor?s Of?ce and Of?cers had no mechanism to report this Incident locally due to the Chief?s dual role as Township Administrator. END OF DOCUMENT GAO34 Case 1: 17- c?r? 0-0532- RBK 36 of 156 P_age D :3_99 (Rev. 5-8-10) 1 - OFFICIAL chono Of FEDERAL BUREAU OF INVESTIGATION BRIAN VINCENT PESCE account - nten, tes Attorney 3 (SA) of Investigation IQIIEH iorm and number was P3 1e TQ IDDJ 1. Addi (FBI), 3 AUSA Lort of rig PESCE sutsec_uently provid Vernon Esquire. an advice PESCE is presently the DEPARTMENT (BTPD). He w.as responsi ilities mI-luded a the investigations. PE made suggestions if needed '91: Date of entry I5. 01 1?20 1 7 United St 05/24 017 MU SA 13/ Durrant, of PESCE's with stated 1nformation: te a Fed or he], ral Bureau RICHARD reimlur sement son Arthur . DC: a trave he understood the forms. or: th BORDENTOWN TOWNSHIP POLICE Captain and part of his Acting Chief of the ously previ a overseeing internal affairs investigations Sergeant GUI DO conductcd and the -an-d (NUCERA), the former Chief nd reviewed the FRANK NUCERA reports JUNIOR sf the BTPD had the ulti 1ma te decision with reIard to ad u-ji.: aticn and 3 s=Ir :tinns imposed. In or areund 2001, PESCE was first introduced to internal affairs (IA) investigations while holding the rank of detective. In or around 20GB, EESC received training in conducting 1A investi-gations anld he was assiglei cases. The first page of the BTPD TA samplaint fo?m is an informational page. The second t-age <:onta ins the aI_tual -:omplaint being submitted. The complainant is t-y an IA investigator and the investigator completes the form. PESCE never saw a private citizen complete the form but FESCE does not believe they are prohibited from doing su. It is BTPD prestige for the investigator to campiete the form. Anonynmus complaints are accepted too. After the iniLial was received, iL thul-i L-e sent NUCERA. NUCERA would review the complaint, assign an investigatian nunber, and then assign it to an investigator. The complainant then re:ei1ed a 05/34/3017 TLEHEDH, New Jersey, United States (In Person) File?! Daledra?ed by DURRANT ARTHUR lo be distributed outside your agency. 293Wn1239a11?neem1/1e 0Page 37 of 156 PageID: 400 282A-NK-2108117 BRIAN PESCE interview on 05/24 Continuation of topaz 05/24/2017 2 of 3 - .1 complaint was filed. The IA investigator conducted an investigation and reviewed the entire incident. The investigator did not limit the scope of the investigation to only the complaint filed. The investigator reported the findings which included: exonerated, sustained, non-sustained, and unfounded. NUCERA decided if the prosecutor's office needed to be notified of any particular complaint. A complaint against NUCERA was "unchartered territory" for EESCE. "If ROOHR didn't make the recording, you probably would have never met me." PESCE thinks ROOHR "would have been on stress leave or had a bulls-eye on his back" if the FBI had not conducted the investigation of this complaint. On 09/01/2016, PESCE did not know there was an incident at the RAMADA INN. TERRY COWEN, the manager, sent him a text message the next day. COWEN told him there was an incident at the hotel. She complained about how NUCBRA yelled at her and PESCE provided her with options which included complaining to the mayor. COWEN later complained to the mayor. ROOHR's initial complaint was filed on or about 09/15/2016. That is when ROOHR "put pen to paper." ROOHR also told PESCE about the existence of the recorded conversations ROOHR had with NUCERA. PESCE decided to draft a complaint listing all of the known allegations against NUCERA. ROOHR established a gmail account and prepared information for PESCE to review. PESCE considered himself a "partial complainant" because he cut and pasted some information from ROOHR into the final report PESCE prepared. PESCE intended to present the final version of the complaint to the BCPO on 11/18/2016. PESCE canceled the meeting when he was contacted by the FBI. PESCE and ROOHR discussed ROOHR's complaint. They thought the complaint would first get "rebuffed" by the prosecutor's office, then get "rebuffed" by the township committee, and then they would need to go to the media. PESCE did not think to contact the FBI. PESCE recalls that he contacted Burlington County Prosecutor's Office (BCPO) Detective Sergeant JOHNATAN GUTKIN in the IA Unit on or about 11/08 /2016, to discuss ROOHR's complaint. GUTKIN was on vacation so PESCE left a voice message for him. GUTKIN called PESCE back about one week later and they scheduled a meeting for 11/18/2016. PESCE considered himself a "partial complainant" because he cut and pasted some information from ROOHR into the final report PESCE prepared. UNCLASSIFIED GA036 mm? 0Page 38 of 156 PageID: 401 BRIAN PESCE interview Ln 05/24 ?1 1t on PESCE :e.led the meet1ng whan he was ?-xto 1 tr On 11/18/2016, PESCE was at the BCEO an unrelaLed matter. The Ch1ef Of Detectives 33w EESCE and 5e k_:d him :31 Ik They the met with Lieutenant TAD DRUMHOND, and The= asked PESCE Why he canceied the meeting ant PFKIB informed thew that the w-v investigatj_hg the matter. 0L abOmt 05/18/2017, PESCE saw farmer Burlington County Prosecutor at an event - aside generally about the F51 iti'u'estigatioh and PEJCEV told hin?: the investigation1143.3 stated ward? to the effec. 0t, "?het?3 crazy. Let eer??g 1ng. lie." UNCLASSIFIED GA037 Case Document 38-1 Filed 10/01/18 Page 39 of 156 PagelD: 402 513-302 (Rev. 5-3-10?rn?eatcs?l FEDERAL BUREAU OF INVESTIGATION Dateol?entry 01/26/2017 born of cellular telephone number was interviewed outside the Team 85 in Bordentown Township, on Wednesday, 01/18/2017, by Special Agent (SA) Vernon I. Addison and SA Arthur E. Durrant, Federal Bureau of Investigation (FBI). After being advised of the identities of the interviewers and the nature of the interview, - provided the following information: was raised in Bordentown Township (BT). He knew who FRANK NUCERA, Junior (NUCERA), was and his son, FRANK NUCERA, but he did not know them. - was older than NUCERA's son. - knew that NUCERA was a police officer. He knew that NUCERA was also a mechanic but - never went to NUCERA's garage. - heard NUCERA was called "Fast Frankie" because he used to speed around town in a Chevrolet Chevelle. In or around October or November of 2001, - was hired as a police officer for the Bordentown Township Police Department (BTPD). Approximately six years ago, he was detailed to the Burlington County Prosecutor's Office (BCPO). On or about 12/19/2016, - was promoted to the rank of sergeant. - knew Police Chief NUCERA, BTPD, his - entire career. He described NUCERA as being a "micro-manager" and "vindictive." NUCERA yelled often. - considered NUCERA to be a "closet racist." could not recall ever hearing NUCERA use "the word" but people told they heard NUCERA use that word. NUCERA has said "you people" to - understood that to be a reference to Black people. It is possible that NUCERA tried to be humorous when he said "you people." Within the past two years, - NUCERA and others attended an active shooter training seminar in a courtroom setting. Someone handed their GoPro unit to to take a group photograph. NUCERA, in the presence of others, told words to the effect of, "Make sure you don't get grease on that." - attended a promotional ceremony about eight to ten years ago with NUCERA. It was possibly for Captain PESCHE's promotion. NUCERA, in the mvmaauonon 01/18/2017 at Bordentown Township, New Jersey, United States (In Person) Filetl Datedra?ed 01/19/2017 by DURRANT ARTHUR E, Vernon I. Addison This document contains neither recommendations nor conclusions of the FBI. It is the property of the FBI and is loaned to your agency; it and its contents are not to be distributed outside your agency. GA038 Case Document 38-1 Filed 10/01/18 Page 40 of 156 PageID: 403 (Rev. 05-08-10) 282A-NK-2108117 w/xrouo) ContinuationofFD-BOZof interView on 1 1 017- ,On 01/18/2017 presence of others, told words to the effect of, come over here. We need color in the picture." .Pnge 2 Of 4 - recalled an incident where NUCERA used excessive force during an arrest. In or around 2006 or 2007, a white female was involved in a vehicle pursuit. The pursuit was initiated in (PA) and terminated in ET. The female crashed into two (2) BTPD vehicles along Route 130 southbound, just at the Route 206 overpass where the former BOB MCGUIRE's was located. - had the female stopped, pulled from the vehicle, on the ground, and handcuffed. NUCERA pulled up in a vehicle with NORM HAND. NUCERA came up to the handcuffed woman, sprayed her in the eyes with pepper spray and immediately walked away. - was shocked to see the Chief of Police do that. - did not report the incident to anyone. - recalled one incident where information came over the police radio about three black males wanted for an offense. - observed three males who appeared similar to the flash information. They ran into a house as - approached them. The one male shut the door quickly but - prevented it from closing completely. - learned that the males were not the ones wanted but NUCERA arrived on the scene and told - to arrest them anyway. - believed "race played a factor" in decision. The BTPD consisted of about twenty three (23) or twenty four (24) people. - was the first black police officer at the BTPD. - knew of one female but she separated from the BTPD. is of mixed descent. There were no Hispanic officers. - was skipped over for promotion to sergeant on two occasions by NUCERA. The original list came out around July of 2015. - estimated the following individuals were ranked in the following manner: GA039 Case Document 38-1 Filed 10/01/18 Page 41 of 156 PageID: 404 (Rev. 05?08-10) wwovo) ConlinuationofFD-SOZof interVie" 0? 1 1 2017~ 01/18/2017 he: 3 of 4 In or around July of 2015, NUCERA promoted his son and GUIDO to the rank of sergeant. NUCERA told - he did not promote him because NUCERA did not trust him. NUCERA said he did not trust that - would have steady work production. In or around December of 2015, NUCERA promoted the others but not - - was stunned because he was already running a squad. He had assumed a sergeant's responsibilities but did not receive the equivalent pay. In December of 2016, was officially promoted by NUCERA to the rank of sergeant. At some point, - started taking notes of some things NUCERA said and did. There were not a lot of notes. - lost those notes but will look to see if he can locate them. In the Fall of 2016, - and others started recording conversations with NUCERA. - purchased a USB recorder on Amazon.com and used that device to record NUCERA. - believed recorded conversations with NUCERA as well. - recorded conversations with NUCERA for protection. - "was more scared of dealing with FRANK NUCERA than arresting a guy with a weapon." NUCERA had a temper and he would yell at officers. NUCERA would also threaten suspensions. NUCERA would occasionally get annoyed with Bordentown City (BC)officials. NUCERA would then tell his officers not to backup any BC police officers. NUCERA told BTPD officers that rather than put it in an e-mail. Approximately four (4) or five (5) months ago, a BC police officer conducted a traffic stop in BT. NUCERA learned of it and became enraged. NUCERA ordered BTPD officers to be at every corner of BC and "run radar." NUCERA knew that BT surrounded the BC boundaries. NUCERA believed that this deterred people from entering BC. NUCERA said he thought it hurt the BC businesses too. NUCERA ordered extra police officers and K-9 units at school basketball games when "schools of color" were involved. NUCERA even had the K-9 dogs out of the vehicles. - thought that was unnecessary when dealing with teenagers. GA040 . Case Document 38-1 Filed 10/01/18 Page 42 of 156 PageID: 405 (Rcv. 05-08-10) 282A-NK-2108117 ?1me I ContinuationofFD-3020f interVieW 0? 1 1 17. 01/18/2017 .Pase 4 of 4 NUCERA was a Mason and was too but they belonged to different lodges. NUCERA used to say to words to the effect of, "You go to the black Mason lodge." GA041 Case Document 38-1 Filed 10/01/18 Page 43 of 156 PagelD: 406 r? 9W2'As?lsm? pf .. FD-302 (Rev. 5-8-10) - 1 of 4 - FEDERAL BUREAU OF INVESTIGATION 02/14/2017 ?orn social security ocount ?umber 0f cellular telephone number was interviewed on Monday, 02/06/2017, by Special Agent (SA) Arthur E. Durrant, and SA Vernon I. Addison, Federal Bureau of Investigation (FBI). After being advised of the identities of the interviewers and the nature of the interview, - provided the following information: In or around 2006, - was hired as a police officer by the Bordentown Township Police Department (BTPD) . In December of 2015, - was promoted to his current rank of sergeant. - is also a K9 officer. He has two (2) working BTPD dogs: a Labrador Retriever that is trained as a narcotics dog and a German Shepard trained as a patrol and bomb dog. BTPD has four (4) K9 officers and six (6) police dogs. recalled an incident where he thought BTPD Chief FRANK NUCERA, JUNIOR (NUCERA) used excessive force at an arrest. There was a vehicle pursuit and the female suspect reportedly hit two BTPD police vehicles. The woman was handcuffed and laying on the ground. NUCERA walked up to the woman and sprayed her in the face with mace and walked away. - was not present for the arrest so he did not see it when it happened. However, other officers told - what NUCERA did and also saw police video. - saw NUCBRA spray the female on the video? does not know if that video still exists. - heard about an incident at the Ramada Inn where NUCERA reportedly used excessive force. - was not working that day. - squad was working and - heard that Lieutenant MOUNT had been injured and that NUCERA pushed a suspect's head into a door jam. thought the following police officers were present: - cannot recall seeing NUCERA use excessive force while - was present. - cannot recall any other incident where NUCERA reportedly used excessive force. IFOUO lnvestigationon 02/06/2017 at Bordentown, New Jersey, United States (In Person) File# Damdn?gd 02/10/2017 by DURRANT ARTHUR E, Vernon I. Addison This document contains neither recommendations nor conclusions of the FBI. It is the property of the FBI and is loaned to your agency; it and its contents are not to be distributed outside your agency. GA042 Case Document 38-1 Filed 10/01/18 Page 44 of 156 PageID: 407 (Rev. 05-08-10) 282A-NK-2108117