UNITED STATES OF AMERICA, Plaintiff, v. COLIN MONTAGUE, et al., Defendants 14-CR-6136-FPG-JWF United States District Court, W.D. New York Filed May 17, 2019 Counsel Brett A. Harvey, Everardo A. Rodriguez, Robert Marangola, Kathryn L. Smith, U.S. Attorney's Office, Rochester, NY, for Plaintiff Feldman, Jonathan W., United States Magistrate Judge DECISION AND ORDER Preliminary Statement *1 On December 9, 2014, the Federal Grand Jury returned a Second Superseding Indictment (Docket # 55) in this matter, charging fourteen individual defendants and one corporate defendant with various offenses relating to narcotics possession and distribution, money laundering and illegal possession of firearms. The Indictment also contains forfeiture allegations. Pursuant to a scheduling order issued by the undersigned, defense counsel filed omnibus motions relating to the specific charges against their clients and the government responded. Oral argument was heard on August 24, 2015. See Transcript of Proceedings of August 24, 2015 (Docket # 196). As is the practice of this Court, many of the motions were discussed and resolved during the motion hearing. In addition, suppression hearings were scheduled with respect to several defendants, most of which have now been conducted and Reports and Recommendations issued. Since the motion argument, several of the original fourteen defendants have entered guilty pleas. This Decision and Order is intended to confirm certain rulings made in the August 24 hearing and resolve all remaining motions on discovery related issues. Discussion I. Discovery and Disclosure: As confirmed at the motion hearing, this is a complicated case involving voluminous discovery. The relevant discovery materials include not only thousands of pages of documents but also video tapes containing many hours of “pole camera” surveillance and several hundred hours of digital recordings of telephone conversations involving the various defendants. The government has provided these materials to defense counsel in an electronic form commonly referred to as Electronically Stored Information or “ESI.” Making discovery disclosures in an ESI format is now common in both civil and criminal litigation. “As technology expands the volume and the range of potential discovery in criminal cases, courts have started to recognize that the Government needs to impose at least some minimal organization on voluminous discovery to comply with the spirit of its statutory and constitutional obligations.” United States v. Quinones, No. 13-CR-83S, 2015 WL 6696484, at *2 (W.D.N.Y. Nov. 2, 2015). Particularly in multiple defendant cases such as this, where the discovery is complex and voluminous, courts have imposed on the government the obligation to organize and disclose discovery materials in a process and format that permits defense counsel to effectively review ESI material and prepare for trial in an efficient and productive manner. See, e.g., United States v. Briggs, No. 10CR184S, 2011 WL 4017886, at *8 (W.D.N.Y. Sept. 8, 2011) (“[T]he Government is the party better able to bear the burden of organizing these records for over twenty defendants in a manner useful to all.”)(emphasis in original). So called “data dumps” (even if denominated as “open file discovery”) do not comply with Rule 16. In meeting its disclosure obligations, the government “may not simply identify a large number of documents that it may or may not seek to introduce at trial.” United States v. Rickets, No. 15-153, 2015 WL 9478136, at *3 (E.D. La. Dec. 29, 2015). See also United States v. Anderson, 416 F. Supp. 2d 110, 112 n.1 (D.D.C. 2006) (rejecting government’s argument that it satisfied Rule 12(b)(4)(B) by providing open-file discovery and giving notice that it intended to use all of materials provided to defendant pursuant to that policy); United States v. de la Cruz-Paulino, 61 F.3d 986, 993 (1st Cir. 1995)(“[O]pen file policy does not, in and of itself, satisfy this notice requirement [of Rule 12(b)(4) ] because it does not specify which evidence the government intends to use at trial.”) *2 Defense counsel here complain that the ESI the government has disclosed is so voluminous and complex that, without adequate organization, their ability to meet their Sixth Amendment obligation of effective representation is impaired. Most of these complaints are voiced in furtherance of motions seeking Bills of Particulars pursuant to Rule 7(f) of the Federal Rules of Criminal Procedure. The government responds that it has disclosed more than it is required to disclose, that in many cases defense counsel is actually in a “better position” than the government to “figure out” what evidence is relevant to their clients and, at this stage of the prosecution, further particularization is not possible because the government has not yet determined what specific evidence they will be using at trial. Having reviewed the defendants’ demands for particularization and the government’s most recent discovery disclosure as set forth in Docket # 155, I find that while the government has acted in good faith in meeting its discovery obligations, in light of the sheer volume of ESI that has been produced in this case, more than good faith is now required. As one court explained: “[g]iven the enormous volume of material produced in this case and defendant’s limited resources, it is apparent that requiring defendant’s counsel to peruse each page of the materials at issue here - in effect, to duplicate the work of document review presumably already done by the government - would materially impede defendant’s counsel’s ability to prepare an adequate defense or, as repeatedly emphasized by defendant’s counsel at oral argument, to evaluate meaningfully the government’s plea offer and to engage in fruitful plea negotiations.” United States v. Anderson, 416 F. Supp. 2d 110, 114 (D.D.C. 2006). It has now been two years since the Second Superseding Indictment was returned. I find that more than sufficient time has passed for the government to organize their evidence and engage in plea negotiations with those defendants interested in discussing or entering guilty pleas. At 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.” See generally United States v. Anderson, 416 F. Supp. 2d at 113-15 (Rule 16 gives the Court the discretion in appropriate circumstances to require the government to categorize and organize discovery materials). Accordingly, the Court orders as follows: 1. Video Evidence: With respect to the video surveillance evidence, the Court will adopt the particularization ruling that Magistrate Judge Scott recently made in a large multiple defendant case involving “pole camera” evidence: The Government presumably would not play [thousands of hours] of video at trial; if it plays any video footage at all then it likely would identify which defendants appear where in the footage as part of its preparation. The Court directs the Government to share with all defendants some kind of annotation that identifies which of them appears on camera at any given time. At least for now, the Court will not wade into the details of how that [annotation] should look or how much of the video footage needs to be annotated, as long as the defendants on screen at any given time are identified for any footage that the Government is contemplating using at trial. United States v, Quinones, No. 13-CR-83S, 2015 WL 6696484, at *3 (W.D.N.Y. Nov. 2, 2015). The Court directs that a similar written annotation be provided to defense counsel here. The government’s disclosure obligation is limited to video evidence it intends to use in its case-in-chief. *3 2. Audio Recordings: For the same reasons, the government must provide defense counsel with a written annotation with respect to audio recordings that it intends to use in its case-in-chief. This particularization must identify whose voice the government contends is heard on each recording, the date and time of the conversation as well as the phone numbers and subscribers of all telephones used in each conversation, if such phone numbers and subscribers are known to the government. If the government intends on providing a transcript of the conversation to the jury or the Court at trial, such transcript shall be provided to defense counsel at least sixty (60) days before jury selection begins. 3. Documentary Evidence Including Photographs: To the extent it has not done so, the government shall specifically identify the documents and other materials it intends to offer in its case-in-chief – “that is evidence that will appear on the government’s exhibit list for trial.” United States v. Anderson, 416 F. Supp. 2d at 112. This requirement “does not include evidence that its witnesses may have reviewed or relied on, but that the government does not plan to offer in evidence at trial.” Id. (emphasis in original). 4. Obligations of Counsel: Just as lawyers have a professional responsibility to keep abreast of changes or developments in the law, it is now clear in this “digital age” that attorneys should have basic competency in working with digital evidence and understand how ESI is created, stored and retrieved.[1] Indeed, several years ago the Department of Justice and the Defender Services Office created a joint task force to establish ESI protocols for use in federal criminal prosecutions. See Recommendations for Electronically Stored Information (ESI) Discovery Production in Federal Criminal Cases published by the Department of Justice and the Administrative Office of the U.S. Courts Joint Technology Working Group (“ESI Protocols”) (2012). This Court expects all counsel to be familiar with and comply with these ESI protocols. Resources are available to assigned counsel to assist them in understanding and reviewing ESI. Should counsel have questions or issues they are strongly encouraged to contact the Defender Services Office National Litigation Support Team, available at 510-637-1950. In addition, the government here has offered to provide assistance to all defense counsel and/or their investigators, associates and paralegals on searching digitally recorded evidence through the SYTEC software application. If they have not done so already, all defense lawyers are encouraged to take advantage of training on the SYTEC software.[2] *4 The government shall have sixty (60) days from the date of this Decision and Order to comply with the ESI discovery obligations set forth herein. Upon compliance, the defendants’ demands for Bills of Particulars pursuant to Rule 7(f) shall be deemed resolved. II. Disclosure of Grand Jury Information: Defendants Sprague and Montague seek discovery of “certain aspects of the grand jury proceedings.” See Docket # 169 at 25; Docket # 149 at ¶ 151-57. It is well settled law that the secrecy of the grand jury should not be compromised absent a showing of “particularized need” by the defense. United States v. Smith, 105 F. Supp. 3d 255, 259 (W.D.N.Y. 2015). See also Pittsburgh Plate Glass Co. v. United States, 360 U.S. 395, 400 (1959) (“The burden ... is on the defense to show that a ‘particularized need’ exists for the minutes which outweighs the policy of secrecy.”). “The particularized need standard applies to both substantive matters before the grand jury and more ministerial functions, such as grand jury instructions.” United States v. Smith, 105 F. Supp. 3d at 260. The defendants’ requests here are mere conjecture or speculation about alleged improprieties. It is therefore apparent that no showing of “particularized need” has been made. Accordingly, the defendants are not entitled to inspect grand jury materials or have access to the other information requested about the grand jury process. III. Severance: Defendants Slaughter, Sprague, Palmer, Burton and Hamilton move for severance pursuant to Rule 14 of the Federal Rules of Civil Procedure alleging a disparity of evidence between their clients and co-defendants. Slaughter also contends that he will be asserting a defense which will be “so antagonistic to [other defendants] that the jury will unjustifiably infer from this conflict alone that both are guilty.” See Docket # 177 at 18. Hamilton also seeks severance because he intends to call a “jointly-charged co-defendant as a witness in his own behalf.” See Docket # 148 at ¶ 53. As to prejudicial joinder, Rule 14 provides that if joinder of defendants “for trial appears to prejudice a defendant or the government, the court may order separate trials of counts, sever the defendants’ trials, or provide any other relief that justice requires.” Fed. R. Crim. P. 14(a). However, as the Supreme Court has noted, “[j]oint trials play a vital role in the criminal justice system” because “[t]hey promote efficiency and serve the interests of justice by avoiding the scandal and inequity of inconsistent verdicts.” Zafiro v. United States, 506 U.S. 534, 537 (1993) (internal quotation marks and citations omitted). Accordingly, although the decision whether to grant severance lies within the district court’s “sound discretion,” severance should be granted only where there is a danger of substantial prejudice, namely “if there is a serious risk that a joint trial would compromise a specific trial right of one of the defendants, or prevent the jury from making a reliable judgment about guilt or innocence.” Id. at 539. Moreover, where, as here, “ ‘spillover evidence’ is alleged as a ground for a Rule 14 severance, the defendant’s burden to demonstrate substantial prejudice resulting in an unfair trial is heavy.” United States v. Mullen, 243 F.R.D. 54, 74 (W.D.N.Y. 2006). *5 Here, none of the defendants have met their “substantial burden” of proving that their role in the offenses alleged in the indictment warrants a separate trial from the other defendants. Their arguments largely center on boilerplate allegations of “spillover prejudice” and jury confusion that would be likely if they and their co-defendants are tried together. All of the defendants moving for severance argue that the evidence against them is minimal compare to the overwhelming evidence against their co-defendants and therefore the jury would be unable to differentiate between defendants. However, non-specific, garden-variety allegations of “prejudicial spillover” rarely justify severance because “differing levels of culpability and proof are inevitable in any multiple defendant trial and, standing alone, are insufficient grounds for separate trials.” See Mullen, 243 F.R.D. at 74 (citation omitted). Hamilton and Slaughter’s additional grounds for severance are similarly without merit. Neither defendant has provided an affidavit identifying the “antagonistic defense” (Slaughter) or the “favorable co-defendant testimony” (Hamilton) that would be unavailable in a joint trial. The defendants’ “burden of demonstrating prejudice is not satisfied by wholly conclusory statements merely labelling the proffered testimony as exculpatory.” United States v. Bari, 750 F.2d 1169, 1177-78 (2d Cir. 1984). In sum, the defendants “have failed to overcome the federal preference that defendants who are indicted together, particularly in a criminal conspiracy, be tried together.” United States v. Gane, No. 10-CR-90S, 2010 WL 4962955, at *3 (W.D.N.Y. Nov. 24, 2010). IV. Striking Alias: Invoking Rule 7(d) of the Federal Rules of Criminal Procedure, Montague moves to strike from the indictment the words “Uncle” and “C” from the indictment. According to the government these are “nicknames” that the defendant is known by. Rule 7(d) permits the Court to strike surplusage from an indictment. The two nicknames at issue here are not inherently prejudicial and do not, by themselves, conjure up images of nefarious conduct or suggest a criminal disposition. Moreover, according to the government, the uses of the nicknames were confirmed on the wiretaps. If, for some reason, the government does not connect Montague to the nicknames, the defendant is not without a remedy. “If the government at trial fails to show either the defendant’s use of the alias or the relevancy of the alias in proving the crimes charged in the indictment, the defendant may renew his motion to strike, and the court may strike the alias and instruct the jury appropriately.” United States v. Ramos, 839 F. Supp. 781, 787 (D. Kan. 1993). For these reasons, the defendant’s motion to strike the use of aliases in the indictment is denied without prejudice. V. Identification Procedures: The government disclosed several photo arrays that were utilized by law enforcement during the investigation of this case. A number of witnesses identified various defendants when shown a photo-spread. As to each array used, the government contends that the defendant who was identified was well known to the witness viewing the array and that each witness had an independent basis (i.e. family member, close friend, business associate) to make the identification. In similar circumstances the government has suggested that it will disclose the name of the witness to the defense well in advance of trial in order to allow the defendant to confirm the independent basis for the identification and obviate the need for a suppression hearing. Defense counsel here has agreed to this procedure. Accordingly, as to each array used, the government shall disclose to defense counsel the name of the witness making the identification and the relationship of the witness to the defendant. Should defense counsel contest whether the witness had an independent basis to make the identification, defense counsel shall contact the Court and a suppression hearing will be convened prior to trial. The disclosure required by this paragraph shall be made at the pre-trial conference or forty-five (45) days before jury selection, whichever date is earlier. *6 VI. Expert Disclosure: The Court assumes that by this time the government has disclosed all reports of examinations and tests required by Rule 16(a)(1)(F). If not, such material must be produced forthwith. The Government agreed to provide expert reports and expert witness qualifications to defense counsel as required by Rule 16(a)(1)(G) no later than sixty (60) days before jury selection. Conclusion For the foregoing reasons, it is my Decision and Order that the defendants’ motions for non-dispositive pretrial relief be granted in part and denied in part as set forth herein. SO ORDERED. Footnotes [1] The American Bar Association’s Model Rules of Professional Conduct now requires practitioners to maintain requisite knowledge and skill “[i]n the law and its practice, including the benefits and risks associated with relevant technology.” ABA-AMRPC § 1.1, Comment 8. Last year the State Bar of California issued an ethics opinion finding that competency for litigators includes “at a minimum, a basic understanding of, and facility with, issues relating to e-discovery, including the discovery of electronically stored evidence (“ESI”).” State Bar of California Standing Committee on Professional Responsibility and Conduct, Formal Opinion 2015-193. [2] Retained counsel for one defendant in this case demanded all discovery be produced in paper form, informing the Court that he has “no training in computers, I’ve never used a computer, I don’t know how to use a computer, period. I wouldn’t even know how to turn one on.” See Docket # 196 at 19. The Court declines to order the government to print out thousands of pages of documents for defense counsel to review. If counsel insists on “paper discovery” he can print out the ESI at his own cost. If counsel lacks the ability to print out the ESI, he can retain a service or an individual with sufficient knowledge to print out the discovery from the ESI format.