United States District Court, W.D. New York
DECISION AND ORDER
FRANK P. GERACI, JR. CHIEF JUDGE.
December 9, 2014, the federal grand jury returned a second
superseding indictment in this matter, charging fifteen
individuals and one corporation with various offenses
relating to narcotics trafficking and money laundering. ECF
No. 55. All pretrial matters were referred to Magistrate
Judge Jonathan W. Feldman ("Judge Feldman")
pursuant to 28 U.S.C. § 636(b).
17, 2016, Judge Feldman issued a Decision and Order regarding
the government's discovery obligations under Rules
12(b)(4) and 16 of the Federal Rules of Criminal Procedure.
ECF No. 253. The government has requested district court
review of that decision. See ECF No. 297. Defendant
Colin Montague has responded to the government's appeal
and also moved for-among other related relief-a finding that
the government failed to comply with the terms of Judge
Feldman's order. See ECF Nos. 419, 420. For the
reasons stated below, Judge Feldman's decision is
affirmed and Montague's request for relief is denied.
Feldman found that although the government had acted in good
faith in meeting its discovery obligations, the volume of
electronically stored information ("ESI") turned
over to defense counsel requires that more be done to ensure
the equitable administration of justice in this case. ECF No.
253, at 4. He also found that "[a]t this point in the
prosecution, there is no reason why the government should not
be able to identify what evidence it intends to present at
trial and provide that evidence to the remaining defendants
in a manner and format that levels the ESI 'playing
field.'" Id. at 5 (citing United States
v. Anderson, 416 F.Supp.2d 110, 113-15 (D.D.C. 2006)).
Accordingly, Judge Feldman ordered the government to do the
following within 60 days:
1. with respect to video surveillance evidence the government
intends to use in its casein-chief, provide defense counsel
with an annotation that identifies which defendants appear on
camera at any given time;
2. with respect to audio recordings the government intends to
use in its case-in-chief, provide defense counsel with a
written annotation identifying whose voice is heard on each
recording, the date and time of the conversation, and the
phone numbers and subscribers of all telephones used in each
3. specifically identify the documentary evidence and other
materials that will appear on the government's exhibit
list at trial.
Id. at 5-8. In addition, to the extent the
government intends to use any transcripts of recorded
conversations at trial, Judge Feldman ordered the government
to provide those transcripts to defense counsel at least 60
days before the beginning of jury selection. Id. at
Judge Feldman issued his Decision and Order, the government
asked for and received four extensions of time to file a
memorandum of law in support of its appeal. See ECF
Nos. 258, 270, 278, 291. On September 7, 2016, the government
timely filed that memorandum. ECF No. 297. The government
argues that this Court should reverse Judge Feldman's
order because (1) it needlessly compels the government to
prepare for trial before a trial date has been scheduled; and
(2) it imposes discovery obligations on the government that
"far exceed" those set forth in Rules 12(b)(4) and
16 of the Federal Rules of Criminal Procedure.
Montague filed a response to the government's appeal. ECF
No. 419. Montague also filed a motion in which he seeks (1) a
finding that the government has failed to comply with the
terms of Judge Feldman's order; (2) an order precluding
the government from presenting evidence at trial due to its
noncompliance; and (3) an order dismissing the indictment
against Montague with prejudice. ECF No. 420.
Court reviews Judge Feldman's May 17, 2016 Decision and
Order to determine whether it was clearly erroneous or
contrary to law. See 28 U.S.C. § 636(b)(1)(A).
"A finding is clearly erroneous when, although there is
evidence to support it, the reviewing court on the entire
evidence is left with the definite and firm conviction that a
mistake has been committed." American Stock
Exchange, LLC v. Mopex, Inc.,215 F.R.D. 87, 90
(S.D.N.Y. 2002) (quoting Derthick v. Bassett-Walker
Inc., Nos. 90-cv-5427, 90-cv-7479, 90-cv-3845, 1992 WL
249951, at *8 (S.D.N.Y. Sept. 23, 1992)) (internal quotations
omitted). "Pursuant to this highly deferential standard