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United States v. Montague

United States District Court, W.D. New York

August 24, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
COLIN MONTAGUE, et al., Defendants.

          DECISION AND ORDER

          HON. FRANK P. GERACI, JR. CHIEF JUDGE.

         INTRODUCTION

         On 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).

         On May 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.

         BACKGROUND

         Judge 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 conversation; and
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 6.

         After 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.

         Subsequently, 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.

         LEGAL STANDARD

         This 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 of ...


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