DECISION AND ORDER
RICHARD J. ARCARA, District Judge.
Before the Court is defendants Kevin Allen and Thamud Eldridge's motion for an order returning this case to the Magistrate Judge for determination of various additional pre-trial motions. For the reasons stated below, defendants' motion is granted in part and denied in part.
Defendants Thamud Eldridge, Kashika Speed, Kevin Allen, and Galen Rose are charged with various offenses including racketeering, racketeering conspiracy, murder in aid of racketeering, conspiracy to distribute controlled substances, possession of firearms in furtherance of drug trafficking crimes, violent crime in aid of racketeering-kidnaping, Hobbs Act robbery/conspiracy, use, carry and brandish of a firearm during and in retaliation to and in furtherance of crimes of violence, use, carry and discharge of a firearm during and in relation to crimes of violence causing death, and felon in possession of a firearm. (Dkt. No. 164)
In sum, it is alleged that defendants were members of a criminal organization that engaged in the distribution of cocaine, cocaine base, marijuana and heroin and also committed acts of violence in furtherance of their drug trafficking enterprise, including murder, robbery and extortion. (Dkt. No. 164) The organization allegedly operated principally on the East Side of Buffalo, New York. Id. The Government contends that defendants robbed, murdered and attempted to rob and murder other individuals involved in drug distribution and that they carried, brandished and discharged firearms in furtherance of these activities. Id. The murder counts set forth in the Superseding Indictment involve the deaths of Thedrus Laster ("Laster") and Sam Jones ("Jones") who were killed, in separate incidents, in April 2005. Id.
Defendants filed extensive pre-trial motions and a number of hearings were conducted before Magistrate Judge Scott. Magistrate Judge Scott issued a comprehensive Report and Recommendation and two Decision and Orders with respect to defendants' pre-trial motions. (Dkt. No. 216, 217 and 221) Defendants filed objections, the Government filed responses, and the defendants were permitted to file replies. Oral argument as to defendants' objections was held on September 6 and September 11, 2013. On November 20, 2013 this Court issued a Decision and Order adopting the Magistrate's findings in their entirety. (Dkt. No. 249)
On October 17, 2013, defendant Allen filed a motion requesting an order returning this matter to Magistrate Judge Scott for various forms of relief as well as additional discovery. (Dkt. No. 244) Defendant Eldridge joined in the motion. (Dkt. No. 246) Specifically, defendants request that the case be returned to the Magistrate for the following: (1) a hearing addressing the existence of any report or memorandum memorializing the exculpatory statements allegedly made by defendant Allen to the Buffalo Police Department; (2) a hearing addressing the seizure and sale of the vehicle Allen was allegedly driving on the night of one of the murders; (3) an in camera inspection, and disclosure, of grand jury transcripts; (4) determination of additional discovery issues; (5) modification of the protective order; and (6) an order striking surplusage from the Superseding Indictment. The Court heard oral argument on December 23, 2013, and now finds as follows.
The Government argues that the Court should deny defendants' motion to return to the Magistrate Judge because it is untimely. The Government contends that this case has been pending for over four years, and that defendants had ample opportunity to timely file the instant motions before Magistrate Judge Scott. The Government argues that it would be fundamentally unfair, both to the Government and the remaining defendants, to further delay the matter by considering the untimely motions. Counsel for defendant Allen argues that the delay should be excused because, inter alia, the matter is complicated, defendant Allen is incarcerated in a facility located eight hours from Buffalo which makes it challenging for them to meet, it has been difficult to locate necessary information dating back eight years from the Buffalo Police Department, counsel has acted with due diligence in investigating the matter but many of the witnesses have been reluctant to cooperate, and co-counsel has only recently become involved.
A court may set a deadline for the parties to file pre-trial motions. See Fed. R. Crim. P. 12(c). Pursuant to Federal Rule of Criminal Procedure 12(e), if a party fails to file a pre-trial motion by the deadline set by the court, the party waives that issue. United States v. Salgado-Campos, 442 F.3d 684 (8th Cir. 2006). However, if a party shows good cause for the delay, the district court has discretion to excuse the waiver. See Fed. R. Crim. P. 12(e).
Here, the Court finds that there exists good cause to consider defendants' motion for an evidentiary hearing and other forms of relief, even though the motion is untimely. This case is extremely complicated and involves a vast number of discovery issues, as demonstrated by the extensive number of pre-trial motions that have already been filed. In addition, it appears that due to the age of the case, both the Government and defense counsel have struggled to obtain information from the Buffalo Police Department, and much of the discovery and other information has been received in a piecemeal fashion and over an extended period of time. Indeed, the other defendants filed objections to Magistrate Judge Scott's Report and Recommendation in late June 2013, and the instant motion was filed on October 17, 2013. Thus, while there has been a delay, the Court does not find it to be an extraordinary one.
In addition, defendant Allen is incarcerated eight hours from Buffalo and his primary counsel, Mr. Harrington, has spent a great deal of time out of the district on another matter. Co-counsel, Ms. Buth, is new to the case. The Court finds that defendant Allen should not be penalized for these factors, especially considering the lengthy jail sentence he will face if convicted on all counts alleged against him in the Superseding Indictment. The Court also notes that none of the other defendants have raised objections to defendant Allen's ...