Morgan Fed CRT Ruling (128491)

Case 1:18-cr-00108-EAW-HKS Document 468 Filed 10/08/20 Page 1 of 83
UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF NEW YORK
UNITED STATES OF AMERICA,
v. DECISION AND ORDER
ROBERT MORGAN, FRANK GIACOBBE, 1:18-CR-00108 EAW

TODD MORGAN, and MICHAEL
TREMITI,
Defendants.
Defendants Robert Morgan, Frank Giacobbe, Todd Morgan, and Michael Tremiti
(hereinafter collectively “Defendants”) stand accused by way of a 114-count Superseding
Indictment returned by a federal grand jury on May 21, 2019, with a scheme spanning over
a decade to defraud financial institutions and government-sponsored enterprises Freddie
Mac and Fannie Mae in connection with the financing of multi-family residential apartment
properties managed by Morgan Management, LLC (“Morgan Management”), and owned
by various limited liability companies controlled by defendant Robert Morgan, as well as
a related insurance fraud scheme charged against defendants Robert and Todd Morgan,
spanning a more limited time period. (Dkt. 42). Defendants seek to dismiss the
Superseding Indictment on the grounds that their statutory and constitutional rights to a
speedy trial have been violated. (Dkt. 216; Dkt. 231; Dkt. 234; Dkt. 237).
The Court recognizes at the outset that the government has mishandled discovery in
this case—that fact is self-evident and cannot be reasonably disputed. It is not clear
whether the government’s missteps are due to insufficient resources dedicated to the case,
-1-

a lack of experience or expertise, an apathetic approach to the prosecution of this case, or
perhaps a combination of all of the above. However, it is clear that the government’s
mistakes, while negligent, do not constitute willful misconduct undertaken in bad faith.
Ultimately, the government’s failures to meet court-imposed deadlines prompted
the Magistrate Judge to condition the exclusion of time from the speedy trial clock on the
government’s production of discovery by a certain deadline—and the government blew
that deadline. The government “missed” and failed to process several devices seized
pursuant to a search warrant executed in May 2018. As a result, the statutory speedy trial
clock has expired, and the Superseding Indictment must be dismissed.
However, after careful consideration, including a detailed analysis of the adequacy
of the government’s electronic discovery production, the Court concludes that a dismissal
with prejudice is unwarranted. The Court further concludes that Defendants’ constitutional
rights to a speedy trial have not been violated. Accordingly, the Superseding Indictment
is dismissed without prejudice.
I. BACKGROUND
A. Initial Indictment and Request to Extend Voluntary Discovery Deadline
The government originally filed charges in this case on May 22, 2018, by way of an
Indictment returned against defendants Frank Giacobbe, Todd Morgan, and two others who
have since pleaded guilty. (Dkt. 1; see Dkt. 30 (defendant Kevin Morgan plea agreement);
Dkt. 36 (defendant Patrick Ogiony plea agreement)). The case was originally assigned to
-2-

District Judge Lawrence J. Vilardo,1 who issued a referral order to Magistrate Judge H.
Kenneth Schroeder, Jr. pursuant to 18 U.S.C. §§ 636(b)(1)(A) and (b)(1)(B). (Dkt. 3).
Defendant Frank Giacobbe was arraigned before Magistrate Judge Schroeder on May 23,
2018 (see 5/23/2018 Minute Entry), and defendant Todd Morgan was arraigned the
following day (see 5/24/2018 Minute Entry). Magistrate Judge Schroeder issued a
Scheduling Order requiring the completion of voluntary discovery by July 27, 2018, and
the filing of pretrial motions by January 25, 2019, and with the parties’ consent, he granted
an exclusion of time from the speedy trial clock from the date of the Scheduling Order
(May 29, 2018) until the date for the filing of pretrial motions (January 25, 2019), pursuant
to 18 U.S.C. §§ 3161(h)(7)(A) and (B)(iv). (Dkt. 16; see also 5/23/2018 and 5/24/2018
Minute Entries).
On July 27, 2018—the deadline set by Judge Schroeder for the completion of
voluntary discovery—the government filed a motion to extend that deadline by 120 days.
(Dkt. 19). The government largely attributed the need for additional time to the volume of
data seized by the government during execution of a search warrant shortly before the
return of the Indictment at the offices of Morgan Management and Frontier Cybercenter.
(Id. at 4-5). Specifically, on May 14 and 15, 2018, the government seized pursuant to a
search warrant eight computers, two iPhones, and five external hard drives (including the
Barracuda Message Archiver) from the offices of Morgan Management. (See Dkt. 157-1
at 86-97). Additional electronic information was obtained from Frontier Cybercenter,

1
On May 29, 2018, Judge Vilardo recused himself and the case was reassigned to the
undersigned. (Dkt. 14).
-3-

where Morgan Management maintained certain servers and computers. (Dkt. 19 at 4; see
Dkt. 157-1 at 91-92, 96).
A status conference was conducted before Magistrate Judge Schroeder on August
6, 2018. (Dkt. 23; see 8/6/2018 Minute Entry). The government explained that the volume
of materials seized in May 2018 pursuant to the search warrant, necessitated the
government putting in place a different document management system to handle the
electronically stored information (“ESI”), and this resulted in delays in the production of
even the pre-search warrant material. (Dkt. 23 at 3-4, 9, 12). The government reiterated
its position set forth in its written motion that the 120-day extension of time would be
sufficient to complete voluntary discovery. (Id. at 19).
At the time, Magistrate Judge Schroeder raised speedy trial concerns:
MAGISTRATE JUDGE: But do you now realize the conundrum the

government’s creating in the context of speedy trial?
AUSA PENROSE: Yes, Judge.
(Id. at 27). Instead of granting the government the full 120-day extension requested, the
Magistrate Judge set a deadline of August 24, 2018 for the government to provide pre-
search warrant data to the defense (id. at 21), and further required that the government
complete its processing of the search warrant material by September 28, 2018, and turn
over Rule 16 material from the search warrant material by October 12, 2018 (id. at 32; see
also 8/6/2018 Minute Entry). In addition, he scheduled a status conference for October 31,
2018, at which time it was contemplated that a new scheduling order for pretrial motions
would be discussed. (Dkt. 23 at 33, 36-37). The parties agreed that the speedy trial clock
-4-

remained stopped through January 24, 2019, pursuant to the original Scheduling Order.
(Id. at 37).
B. October 31, 2018 Status Conference and Document Production Protocol
In advance of the October 31, 2018 status conference, counsel for Todd Morgan,
David Rothenberg, Esq., filed a report on October 29, 2018, contending that the
government had failed to comply with the Magistrate Judge’s deadlines because discovery
seized pursuant to the May 2018 search warrant still had not been produced, and the
electronic discovery that had been produced contained technical deficiencies. (Dkt. 24 at
3). Mr. Rothenberg stated that no discovery had been produced from many of the devices
that were seized pursuant to the May 14, 2018 search warrant. (Id. at 4-6).
A status conference was conducted before Magistrate Judge Schroeder on October
31, 2018. (Dkt. 184; see 10/31/2018 Minute Entry). At the outset of that conference, the
Magistrate Judge stated that he was “very disturbed by the government’s—I won’t call it
foot dragging, incompetent may be too strong a term, but it seems to me that this is a
problem that is being created by the government’s inability to do what it’s supposed to do.”
(Dkt. 184 at 3). The government disagreed with defense counsel’s claim that there were
technical deficiencies with the electronic discovery. (Id. at 3-5). The government also
represented at that conference that it had produced all discovery other than that which had
hit on a privilege term and was going through the filter review process,2 although it

2
The government explained at the October 31, 2018 conference that the issue of the
use of a filter team was litigated before the undersigned, see Grand Atlas Property
Management v. United States, Case No. 1:18-mc-00030-EAW, and that the government
-5-

admitted that it had only completed that production that day and did not meet the Magistrate
Judge’s deadline of October 12, 2018. (Id. at 6-7).
Mr. Rothenberg countered that, in fact, there were multiple technical deficiencies
with the electronic discovery, leading him to conclude that “whatever vender they are
working with is incompetent and producing these things in a manner that makes it close to
impossible for us to use.” (Id. at 9-12). Mr. Rothenberg raised the issue of whether a
motion to dismiss the indictment should be filed because of the government’s failure to
comply with the deadline for production of voluntary discovery,3 prompting the following
response:
MAGISTRATE JUDGE: Well, that would be a pretty severe sanction.

Obviously I’m not talking off the top of my head, I’m not indicating in any
way what the outcome of such a motion would be. I do know that all I could
do would be a Report and Recommendation, since it would be a Motion to
Dismiss, and that would be for the district judge to whom the case is assigned
to actually pass on the merits. But I am struggling with this problem of a
carrot and a stick and not having an appropriate stick by which I can
apparently get at least the government to comply with my scheduling order.
One thought that came into my mind, but I’m not sure it would resolve
anything other than create even further problems would be to say, all right,
by reason of the delay that is attributed the government, allegedly, the time
will not be excluded while we finish up this production. But that time could
run maybe longer than 70 days.

had not anticipated that litigation, which in part led to delays with review by the filter team.
(Dkt. 184 at 7-9).
3
Mr. Rothenberg made it clear that the motion would not be based on a violation of
the Speedy Trial Act, but rather based on violating Magistrate Judge Schroeder’s
scheduling orders. (Dkt. 184 at 28). But he ultimately agreed during the appearance to
“abandon” that argument. (Id.).
-6-

(Id. at 17-18). Although the Magistrate Judge further indicated at that appearance that he
needed “the threat of a club” (id. at 28), he ultimately did not implement any such “club”
but rather, with the consent of all defense counsel, extended the deadlines for discovery
compliance and pretrial motion filings, and further directed the parties to agree upon a
document production protocol for electronic discovery (id. at 28-30).
An Amended Scheduling Order was entered on the docket that same day, extending
the deadline for pretrial motions to June 28, 2019, and excluding the time from the speedy
trial clock through that date pursuant to 18 U.S.C. §§ 3161(h)(7)(A) and (B)(iv). (Dkt. 25).
On December 19, 2018, the government filed a status report attaching the agreed-upon
document production protocol for electronic discovery. (Dkt. 27; see Dkt. 27-1 (document
entitled “Data Delivery Standards” constituting the document production protocol,
hereinafter referred to as “the DPP”)).4
C. The Status Conference before the Magistrate Judge on May 29, 2019
On May 21, 2019, the Superseding Indictment was returned, adding additional
charges and two additional defendants—Robert Morgan and Michael Tremiti. (Dkt. 42).
After arraignments were conducted before the duty magistrate judge (Dkt. 45), a status
conference was conducted before Magistrate Judge Schroeder on May 29, 2019 (Dkt. 53;
see 5/29/19 Minute Entry). At that conference, the government requested 60 days to

4
It appears that the DPP was only expressly agreed upon by the government and
counsel for defendants Todd Morgan and Kevin Morgan. (Dkt. 27 at 2). However, the
Magistrate Judge indicated at the appearance on October 31, 2018, that the DPP was to be
the “established protocol for the remainder of this case,” (Dkt. 184 at 13), and nothing in
the record suggests that any defendant, including those added with the Superseding
Indictment, objected to the terms of the DPP.
-7-

provide voluntary discovery related to the Superseding Indictment and the Magistrate
Judge questioned the need for that amount of time. (Dkt. 53 at 6-8). The government
explained that it could make the previously-produced discovery immediately available to
the newly added defendants, but it was requesting the 60 days as a “cautious estimate” of
the time needed to “provide all discovery in the government’s possession . . . in accordance
with the protocols that have been provided to the parties.” (Id. at 9). Magistrate Judge
Schroeder raised concerns about the government’s request for 60 days to provide voluntary
discovery, and the following exchange occurred:
MAGISTRATE JUDGE: All right. I don’t want to piece meal this thing as
we did under the original indictment by having to hold status conferences
when the government did not meet the original dates that were set, but I also
need to have some sort of control and, put it point blank and bluntly, a club.
And what I’m contemplating is if I give the government 60 days, and it
doesn’t meet the deadline of providing the discovery material, the time
thereafter that it takes for the government to get that material to the
defendants will count against the government for purposes of speedy trial
requirements, which means the clock will start running as to the government.
Now, at the same time, I’m well aware that defense counsel is going
to also claim, however, that they need whatever time they are going to claim
they need once the discovery material is turned over. But the bottom line is
that once all of the pretrial motions have been completed, if the government
has been penalized, so to speak, in losing time that it’s entitled to for purposes
of being ready for trial, that still would apply. For example if all of the
pretrial motions have been resolved, and any other issues have been
resolved, and the government was 10 days late in getting the discovery
material, the government’s time for going to trial is going to be reduced by
that 10-day period.
AUSA PENROSE: Your Honor, I think that makes sense and the
government certainly has no objection. I would just like to clarify that that
would be with respect to any evidence subject to discovery currently in the
government’s possession. Obviously, the government has continuing
discovery obligations.
-8-

MAGISTRATE JUDGE: Right. I’m talking about what we’re talking about
as being produced now.
AUSA PENROSE: Understood.
MAGISTRATE JUDGE: That which is in the government’s possession,

which is being put together pursuant to a protocol.
(Id. at 14-15 (emphasis added)).
The discussion then turned to how much time defense counsel would need to file
pretrial motions, and when counsel for defendant Michael Tremiti raised questions as to
the volume of discovery that had already been produced (id. at 18), Mr. Rothenberg
(counsel for Todd Morgan) offered to “assist” by explaining the volume of documents
received to date and indicating that those documents “arrived here, finally, in the proper
format, my recollection is sometime in February, and it is a monumental task to go through
this volume of documents” (id. at 19-20 (emphasis added)). The Magistrate Judge engaged
in further discussions about the schedule, ultimately agreeing to allow Defendants six
months from the voluntary discovery deadline to file pretrial motions (although at least one
defense counsel asked for additional time). (Id. at 21-26). The Magistrate Judge then asked
certain questions and made certain findings concerning the exclusion of time from the
speedy trial clock, as follows:
MAGISTRATE JUDGE: Now, as to the Defendant Giacobbe, Mr.

Greenman, is it his position that the time between now and January 31st,
2020 will, in fact, be utilized in such a way so as to operate and enure to his
benefit, and, therefore, such time should be excluded for purposes of the
Speedy Trial Act?
MR. GREENMAN: Yes, your Honor.
-9-

MAGISTRATE JUDGE: Mr. Rothenberg, on behalf of the defendant,

Todd Morgan, is it his position that the time between now and January 31st,
2020 will be utilized in such a way as to operate and enure to his benefit, and,
therefore, such time should be excluded for purposes of the Speedy Trial
Act?
MR. ROTHENBERG: Yes, your Honor, but subject to your Honor’s

previous indication about the consequences of the government not complying
with the 60-day voluntary discovery deadline, but otherwise, yes, your
Honor.
MAGISTRATE JUDGE: And, Mr. Thompson, as to the Defendant Tremiti,

is it his position that the time between now and January 31st, 2020 will, in
fact, be utilized in such a way as to operate and enure to his benefit, and,
therefore, such time should be excluded for purposes of the Speedy Trial
Act?
MR. THOMPSON: Yes, your Honor.
MAGISTRATE JUDGE: Mr. Cohen and Mr. Robert Morgan, I will address
that exclusion of time issue with Mr. Morgan’s counsel, hopefully, on June
10, 2019.5
MR. COHEN: Understood, your Honor. Thank you.
MAGISTRATE JUDGE: All right. Counsel for the government, is it the

government’s position with respect to each individual defendant’s case that
the time between now and January 31st, 2020, will operate in the interest of
justice in each individual defendant’s case, and, therefore, such time should
be excluded for purposes of the Speedy Trial Act subject to the condition that
I imposed as far as meeting the discovery deadlines are concerned?
AUSA FABIAN: Yes, your Honor.

5
Counsel for Robert Morgan, Joel Cohen, Esq., of the law firm Gibson, Dunn &
Crutcher, LLP (“Gibson Dunn”), appeared only provisionally on May 29, 2019, and the
Magistrate Judge scheduled an appearance for June 10, 2019, to address the issue of
counsel. (Dkt. 53 at 9-13, 29-30). However, that appearance was “stayed” due to separate
litigation commenced by the Securities and Exchange Commission (“SEC”) against Mr.
Morgan. (Dkt. 56; Dkt. 57). Ultimately, on July 31, 2019, Mr. Cohen and additional
attorneys with Gibson Dunn filed notices of appearance on Robert Morgan’s behalf. (Dkt.
106; Dkt. 107; Dkt. 108; see also Dkt. 150 at 52 (Mr. Cohen confirming that Gibson Dunn
had been fully retained on behalf of defendant Robert Morgan)).
- 10 -

MAGISTRATE JUDGE: Based on the representations made by counsel for

the respective parties herein, I find that the time between now and January
31st, 2020, will, in fact, be utilized in such a way so as to operate and enure
to the benefit of each defendant, individually, as well as operate in the interest
of justice in each individual defendant’s case in that such time is going to be
utilized to allow the government sufficient time within which to provide
voluntary discovery material to each defendant, and, thereafter, give each
defense counsel sufficient time within which to review the material provided,
as well as time to prepare in the representation of each defendant so as to
provide each defendant with effective assistance of counsel, that being each
defendant’s constitutional right, which right outweighs the public’s right or
interest to a speedy trial or disposition in this matter. Further, such time will
be utilized by the parties for the purpose of conducting pretrial negotiations
with the objective of reaching an agreement that will dispose of this matter
without the necessity of a trial. And should that objective be accomplished,
the public will also benefit from same in that it will be spared the cost and
expenditure of resources that would be necessitated in the holding of a trial
and possible appeal. For all of those reasons then, the time is justifiably and
validly excludable, and is hereby so excluded, pursuant to and in accordance
with the provisions contained in Title 18 of the United States Code Section
3161(h)(7)(A) and section 3161(h)(7)(B)(4).
(Id. at 53 at 26-29 (emphasis added)).
On May 29, 2019, a Scheduling Order was filed memorializing the deadlines
discussed during the status conference on that same date, confirming that all voluntary
discovery must be produced by July 31, 2019, and that pretrial motions must be filed by
January 31, 2020. (Dkt. 50). The written Scheduling Order confirmed that time had been
excluded from the speedy trial clock from May 29, 2019, through January 31, 2020, “for
the reasons stated on the record herein,” although there was nothing in writing expressly
addressing the clock running if the government failed to provide discovery by the July 31,
2019 deadline. (Id. at 2).
- 11 -

D. Defendant Robert Morgan’s November 2019 Motion to Extend

Pretrial Motion Deadline and Disclosure by Government of Missing
“Laptops”
On November 15, 2019, defendant Robert Morgan filed a motion for a six-month
extension of time to file pretrial motions. (Dkt. 138). Defendants Todd Morgan and Frank
Giacobbe consented to the requested extension, but defendant Michael Tremiti initially did
not and the government also opposed the request. (Dkt. 138-3 at 1). In support of that
motion, counsel stated that the government made its first and only production of voluntary
discovery to defendant Robert Morgan on August 8, 2019,6 described as “massive” and
“containing over 2.1 million pages of discovery,” not including a subset of 886,500
documents missing “necessary load files.” (Id. at 7). The government filed a response in
opposition to the motion, pointing out that the alleged load file issue was never raised by
counsel for defendant Robert Morgan until October 30, 2019, and the government
remediated the issue in less than one week afterwards. (Dkt. 143-1 at ¶¶ 12-14). Moreover,
the government disputed that load files were not provided, explaining in a sworn affidavit

6
The record supports the conclusion that the government repeatedly followed up with
counsel for Robert Morgan in an effort to produce discovery by the deadline of July 31,
2019, but it was not until August 1, 2019, after Gibson Dunn confirmed that it had been
fully retained, that a hard drive was provided to the government for purposes of providing
discovery. (Dkt. 143-1 at ¶¶ 4, 6, 7-8). The government began copying the data to the hard
drive, but because of its volume, the process was not completed until August 8, 2019, at
which point the hard drive was sent to Gibson Dunn by overnight delivery. (Id. at ¶ 8).
Although the Magistrate Judge’s order required the production of voluntary discovery by
July 31, 2019, the Court would be hard-pressed to conclude that the government’s
production of discovery to Gibson Dunn on August 8, 2019 somehow violated that order
given the circumstances, and defendant Robert Morgan does not seriously argue otherwise.
In any event, the eight days at issue do not impact the Court’s resolution of these motions.
- 12 -

that it used a computer program called “Beyond Compare” to copy the various electronic
document productions from government servers to the hard drive provided by counsel for
Robert Morgan. (Id. at ¶ 10). According to the sworn affidavit, this “program allows a
user to compare the files that are being copied to the original source files and identifies any
differences between the two sets of files,” and there were no differences identified during
this process. (Id.). Moreover, the government’s copy of the productions included the
necessary load files. (Id.). Thus, the government opined that any missing load file was
likely caused by corruption that occurred during copying/loading of the productions to the
Gibson Dunn servers. (Id.).
The government also explained that neither counsel for Todd Morgan nor counsel
for Frank Giacobbe7 had contacted the government concerning any issue with respect to
discovery after it was provided on July 31, 2019. (Id. at ¶ 16). Similarly, prior to the
November 25, 2019 status conference, the government was unaware of any issue that
counsel for Michael Tremiti was having with respect to the government’s productions.
(See Dkt. 262-1 at ¶¶ 25-27).
Also included in the government’s response to defendant Robert Morgan’s motion
for an extension of time was a statement in its memorandum of law that “on approximately
the same date that counsel filed the current motion to adjourn, counsel for the government

7
The record shows that counsel for defendant Frank Giacobbe expressed his desire
not to receive the volume of discovery provided to other defendants because of the costs
related to maintaining and reviewing the discovery, and instead, at his request, has received
smaller batches of documents. (See Dkt. 262-1 at ¶¶ 19-23).
- 13 -

identified images of three laptop hard drives” seized during the May 2018 search warrant,
that had not been previously produced. (Dkt. 143 at 5). The government suggested that
“because emails and business documents from Morgan Management’s servers were
already part of the discovery production, it is likely that many or most of the items on the
laptops are duplicative of items already produced.” (Id. at 5-6).8
A status conference was held before the undersigned on November 25, 2019. (Dkt.
145; Dkt. 150). At that time, the Court raised questions as to why defense counsel had
delayed raising any issues concerning discovery provided over three months earlier. (See
Dkt. 150 at 5-6 (counsel from Gibson Dunn indicating that it was a lengthy process to
upload the documents, but conceding that they were “inundated with criminal and civil
forfeiture issues” and ongoing discussions concerning real property transactions, but “as
soon as we were able to turn to the discovery issue, we promptly alerted the government.”)).
Counsel for Todd Morgan also reported issues with respect to the electronic discovery
based on checking with his vendor “this morning,” (id. at 7), and when questioned by the
Court as to why he did not raise these issues earlier, he responded:
There seemed to me personally there was no point to try and resolve this on
behalf of Todd alone. Until we had the entire defense team assembled and
present and quite frankly, the resources of Gibson Dunn, it didn’t seem to me
to be a worthwhile exercise.

8
It was clarified at a later status conference that the three “laptop” computers actually
consisted of a desktop computer used by Kristy Trombley, a laptop computer used by Paul
White, and a laptop computer used by defendant Michael Tremiti. (Dkt. 228 at 26).
- 14 -

(Id. at 9).9
The government conceded at the November 25, 2019 status conference that the three
“laptops” had been “missed.” (Id. at 30). The Court indicated that the government needed
to identify what was contained on those laptops that fell within the scope of Rule 16 that
had not been previously produced, and the government agreed. (Id. at 31). Counsel for
defendant Robert Morgan described the revelation of the missing laptops as a “bombshell”
and indicated his intention to file a motion to dismiss for a violation of the Speedy Trial
Act based on the Magistrate Judge’s conditional exclusion of time requiring discovery to
be produced by July 31, 2019. (Id. at 16-19).
The Court did not rule on the motion to extend the pretrial motion deadline at the
November 25, 2019 status conference, but instead directed the parties to work with each
other to address any outstanding issues with respect to the electronic discovery, and
scheduled a further status conference for December 20, 2019, where each party was
directed to attend with an information technology (“IT”) person knowledgeable about the
electronic discovery issues if they remained unresolved. (See Dkt. 145). The Court also

9
On February 5, 2019, AUSA Penrose emailed counsel for defendant Todd Morgan
asking whether the government’s recent production after negotiation of the DPP had
provided the functionality requested, and counsel responded that they were still processing
the production but would “let [the government] know later in the week if we discovered
any issues and whether it functions as we hope it will.” (Dkt. 262-1 at ¶ 31). Counsel for
defendant Todd Morgan never raised any issues concerning the adequacy of the
government’s electronic discovery after agreement on the DPP until he stated concerns for
the first time almost ten months later at the status conference before the Court on November
25, 2019. (Id. at ¶¶ 31-36). In fact, at the appearance before Magistrate Judge Schroeder
on May 29, 2019, counsel for Todd Morgan represented that the discovery had arrived “in
the proper format” in February. (Dkt. 53 at 19-20).
- 15 -

conferred with all counsel regarding a trial date and, with no objection from any party,
scheduled a trial date of January 11, 2021. (See Dkt. 147).
E. December 20, 2019 Status Conference
A further status conference was held before the undersigned on December 20, 2019.
(Dkt. 167; Dkt. 182). Only the government complied with the Court’s direction to have an
IT person present. (Dkt. 182 at 2-5). At that conference, counsel for defendant Robert
Morgan represented that all metadata issues they had identified had been resolved except
for the missing file extension issues and some minor issues with 100 or so documents. (Id.
at 7-8, 11). With respect to the missing file extension data, the government represented
that its database also did not have file extensions for the identified documents, and that a
large number of the identified documents came from “container files” and the files stored
therein would not have file extensions. (Id. at 9-10).
The Court set deadlines at the December 20, 2019 status conference for Defendants’
anticipated motions to dismiss on speedy trial grounds, which were confirmed by a Text
Order issued that same day. (Dkt. 168). The Court also issued a Scheduling Order
confirming various deadlines pertaining to outstanding discovery issues identified at that
status conference. (Dkt. 169). The Court’s Scheduling Order further set deadlines for
compliance with its instructions, given at the status conference, for defense counsel to
- 16 -

provide logs of missing metadata to the government and the government to provide overlay
files in an attempt to remedy any missing metadata issues. (Id.).10
In advance of the status conference, the government had disclosed by letter dated
December 17, 2019, that as part of its investigation, it had been speaking with Larry Hill,
former Chief Financial Officer of Morgan Management, who disclosed that he had in his
possession a backup server of Morgan Management that he had kept in his basement and
intended to dispose of because he was ill with cancer. (Dkt. 157-1 at 124). The government
took possession of the server in October 2019, and while it did not intend to use any of the
data or information from the server, it was arranging to make the contents available to
defense counsel “as quickly as the technology involved will allow,” but those efforts had
been complicated by the need to equip the facility with connections that would enable the
government to “power up the server and bring it back online.” (Id. at 124-25).
F. January 27, 2020 Status Conference
A further status conference was held before the undersigned on January 27, 2020.
(Dkt. 201; Dkt. 228). Among the issues addressed at that status conference was defendant
Todd Morgan’s iPhone, which was seized during execution of the May 2018 search warrant
but never turned over to the filter team for privilege review, and therefore no materials
from that iPhone had been produced to Defendants. (See Dkt. 228 at 45-49; see also Dkt.
197 at 5). The government initially represented that records from the iPhone had been

10
The parties have stipulated as to the timing and content of log files provided by
Defendants and overlay files provided by the government, occurring between December
2019 and March 2020. (Dkt. 436 at 2-5).
- 17 -

produced, but when asked by counsel for defendant Robert Morgan to identify where
material from the iPhone existed within the electronic discovery, the government
ultimately disclosed on January 6, 2020, that, in fact, the iPhone had not been processed
and therefore discovery from it had not been produced. (Dkt. 216-1 at ¶ 13; see also Dkt.
231 at ¶ 35 (“[I]t was not until January of 2020 that the government first disclosed that it
had never produced the contents of Todd Morgan’s phone.”)).
Also discussed at the January 27, 2020 status conference was information obtained
from defendant Todd Morgan’s vendor identifying various metadata in the native files
produced by the government—metadata that the government claimed did not exist. (See
Dkt. 200). This led counsel for Robert Morgan to indicate that their prior representation
that the metadata issues had been resolved was based on the government’s representation
that the missing metadata was not retrievable, but they now questioned the accuracy of that
information. (Dkt. 228 at 9-10). A further topic of discussion was the fact that the
government did not provide custodian information for the electronic discovery of the three
missing “laptops” in the same form it had provided the information previously, although
the government indicated it was prepared to provide an overlay file with that information.
(Id. at 26-29). At that conference the government also indicated that, after initially
forgetting that it had represented to the Court that it would identify documents contained
in the production of the three “laptops” that had not been previously produced, it was still
in the process of attempting to do that. (Id. at 29-31).
On January 28, 2020, the Court issued a Scheduling Order that, among other things,
set forth a schedule for an evidentiary hearing to commence on March 30, 2020, which the
- 18 -

Court indicated would likely be necessary to resolve the remaining disputes concerning
discovery that would be the subject of the contemplated speedy trial motions. (Dkt. 202).
G. Speedy Trial Motions
On January 31, 2020, defendant Robert Morgan filed his motion to dismiss on
speedy trial grounds. (Dkt. 216; Dkt. 217; Dkt. 220). Defendant Robert Morgan argues
that the Superseding Indictment should be dismissed with prejudice due to violations of
the Speedy Trial Act and his constitutional right to a speedy trial. (Id.). On February 6,
2020, defendant Todd Morgan filed his own speedy trial motion (Dkt. 231), and the next
day defendants Michael Tremiti and Frank Giacobbe both filed their own motions (Dkt.
234 (Tremiti motion); Dkt. 237 (Giacobbe motion)).
By Text Order entered on February 7, 2020, after an appearance on February 5,
2020, the Court granted the motion to extend the deadline for Defendants to file pretrial
motions in part, extending the deadline to May 8, 2020. (Dkt. 235).
In accordance with the schedule set by the Court, defendants Robert Morgan, Todd
Morgan, and Michael Tremiti filed memoranda on February 14, 2020, concerning the scope
and conduct of the anticipated evidentiary hearing (Dkt. 242; Dkt. 244; Dkt. 245), and
defendant Frank Giacobbe subsequently filed a motion to join in those arguments (Dkt.
248).
On February 28, 2020, the government filed its response in opposition to
Defendants’ speedy trial motions. (Dkt. 262). On March 2, 2020, the government filed its
response to Defendants’ memoranda regarding the scope and conduct of the evidentiary
hearing. (Dkt. 264). On March 5, 2020, defendant Robert Morgan filed a reply addressing
- 19 -

the scope and conduct of the evidentiary hearing (Dkt. 273), and on March 11, 2020, he
filed a reply in further support of his speedy trial motion (Dkt. 279).
H. March 10, 2020 Status Conference
A status conference was held before the undersigned on March 10, 2020. (Dkt. 278;
Dkt. 282). The Court confirmed that an evidentiary hearing was required to resolve the
pending speedy trial motions, but limited the scope of the hearing to whether the
government’s electronic productions on July 31, 2019, and August 8, 2019, complied with
the DPP. (Dkt. 282 at 13). Moreover, the Court explained that Defendants had the burden
of proving by a preponderance of the evidence that the government’s production did not
comply with the DPP, but if they met that burden, then the government must be prepared
to present evidence that any deficiencies in the production were excusable. (Id. at 13-14).
Also discussed at that status conference was the government’s disclosure, by letter
dated February 14, 2020, that approximately 11,500 documents (16,900 documents
including family members) from five devices seized during execution of the May 2018
search warrant that originally cleared the privilege screen and were produced, hit on a
privilege term and should have been segregated and reviewed by the government’s filter
team. (See Dkt. 243). This disclosure prompted defendant Robert Morgan to file a motion
for discovery (Dkt. 253; Dkt. 254), which the Court addressed at the appearance on March
10, 2020 (Dkt. 281). As memorialized by Text Order, the Court granted the motion to the
extent it sought production by the government of a Relativity history report, but otherwise
denied the motion without prejudice. (Id.).
- 20 -

Ultimately, on May 12, 2020, defendant Robert Morgan filed a motion to dismiss
Counts 1, 38, 39, 61 and 62 of the Superseding Indictment with prejudice based on the
government’s alleged improper use of privileged communications. (Dkt. 322; Dkt. 325).
Oral argument was held before the undersigned on June 22, 2020, at which time the Court
reserved decision and requested supplemental submissions from defendant Robert Morgan.
(Dkt. 344). Defendant Robert Morgan filed his supplemental submission on July 20, 2020
(Dkt. 402; Dkt. 408), and the Court requested further briefing from the government (Dkt.
434), which was filed on September 8, 2020 (Dkt. 457).
I. Adjournment of Hearing because of COVID-19 Pandemic
Shortly after the March 10, 2020 status conference, the COVID-19 pandemic
upended all aspects of life, necessitating the Court, with all parties’ consent, to cancel the
evidentiary hearing scheduled to commence on March 30, 2020. (Dkt. 284; Dkt. 292).
Ultimately, the Court rescheduled the evidentiary hearing to commence on July 14, 2020.
(Dkt. 308).
J. The Evidentiary Hearing
The evidentiary hearing commenced before the undersigned on July 14, 2020,
continuing through the remainder of that week until July 17, 2020, and then resumed and
concluded on July 22, 2020. (Dkt. 392; Dkt. 398; Dkt. 399; Dkt. 400; Dkt. 407).
Defendant Todd Morgan presented the testimony of two employees of the vendor
he retained to manage ESI in this case (D4/Special Counsel, Inc. (hereinafter “D4”)): Dan
Schatz and Louis Martin. Defendant Robert Morgan presented the testimony of Robert
Hyde, a senior eDiscovery specialist employed by Gibson Dunn. Defendants also called
- 21 -

as a witness Craig Bowman, an employee of the United States Attorney’s Office of the
Western District of New York (“USAO-WDNY”). The government presented the
testimony of a retained expert witness, Kenneth Marchese, senior managing consultant at
IDS Discovery Solutions.
The testimony of each of these witnesses is summarized below insofar as the Court
has determined the testimony is relevant to the reasoning set forth in this Decision and
Order.11 Of course, the undersigned presided over the hearing and therefore listened to all
of the testimony firsthand and in addition, in drafting this Decision and Order, has reviewed
and considered all transcripts of the hearing regardless of whether summarized herein.
1. Mr. Schatz’s Testimony
Mr. Schatz testified concerning various metadata deficiencies in the government’s
electronic discovery productions, as reflected in the exhibits introduced into evidence as
Exhibit B and Exhibit C. (Dkt. 381-1 (Ex. B); Dkt. 346-2 (Ex. C)). The government’s
Initial Production12 consisted of 1,450,837 documents, reflecting 882,841 emails and

11
The transcript of Mr. Marchese’s testimony from July 16 and 17, 2020 is filed at
Docket No. 401, and the transcript’s pagination corresponds to CM/ECF-generated page
numbers. The remaining evidentiary hearing transcripts (including Mr. Marchese’s
continued testimony on July 22, 2020) are filed at Docket Nos. 409, 417, 418, 419, and
420. The pages of those transcripts are numbered sequentially, and when referencing any
portion of those transcripts herein, the Court refers to the corresponding docket number
and transcript page number (not the CM/ECF-generated page number).
12
The parties have stipulated that the term “Initial Production” refers to three
productions of ESI made by the government to defendant Todd Morgan prior to July 31,
2019—namely, on January 22, 2019, February 22, 2019, and July 29, 2019. (Dkt. 436 at
1-2).
- 22 -

567,996 other documents. (Dkt. 381-1 at 2-3; Dkt. 409 at 28-29). Of those documents,
860,522 were missing DATE metadata, with over 430,000 documents reflecting no change
in the DATE metadata field formatting after the DPP was agreed-upon. (Dkt. 381-1 at 2-3;
Dkt. 409 at 33, 56-57). Once overlays13 were provided by the government, the DATE
metadata field was corrected for almost one-third of the documents (primarily emails), but
590,448 documents still were missing DATE metadata, including 294,818 emails. (Dkt.
381-1 at 2-3). Of those 294,818 emails, 169,287 had a misformatted DATE value and
125,531 had no DATE value. (Dkt. 420 at 713). The Initial Production also contained
missing values for the metadata fields of FILE EXTENSION, MD5 HASH, PATH, CUSTODIAN,
MIME TYPE, and FILE SIZE—and the government overlays did not change the status of the
information in any of those fields. (Dkt. 381-1 at 2-3). Mr. Schatz also explained that
while he did not classify the field as missing information, some of the documents reflected
CUSTODIAN values that were “just a series of numbers and letters that had no apparent
meaning or connection to anybody.” (Dkt. 409 at 41). It was established at the hearing
that the provision of CUSTODIAN metadata is a function of “human direction”—in other
words, it is not information that is extracted by a computer based on metadata imbedded

13
Overlay files were described at the hearing as “information populated into a
metadata field” which has a “matching control number or identifier” that allows one to load
the material into the eDiscovery system (such as Relativity) so that one can “populate
values that are not there” or “override values that are there.” (Dkt. 417 at 191; see also
Dkt. 401 at 13 (“An overlay is a limited text file. It typically contains a Bates number or
image key for a record. And that is used to match the following values in the database.
And when the image key is matched, the other values get overlayed into their assigned
fields.”)).
- 23 -

within the documents but rather the values are input into the CUSTODIAN field at the
direction of somebody processing the data. (Dkt. 418 at 553).
The Laptop Production14 initially contained 1,419,300 documents, but on March 18,
2020, the government provided an overlay file identifying 668,125 system files, so that
751,175 documents remained for analysis. (Dkt. 346-2; Dkt. 409 at 58; see Dkt. 436 at 4).
The extent of the missing information in the metadata fields for the Laptop Production was
not as significant when compared to the Initial Production (cf. Dkt. 381-1 with Dkt. 346-
2), but there was still missing information—namely, 54,578 documents were missing DATE
values (although only 72 emails were missing DATE metadata), 220,996 documents were
missing FILE EXTENSION values (including almost all of the emails), over 90,000
documents were missing MD5 HASH values, 164,179 documents were missing FILE SIZE
values, and no CUSTODIAN information was initially provided (Dkt. 409 at 59-64; see Dkt.
346-2 at 2-3).
Mr. Schatz testified that D4 did not provide a log file to the government identifying
missing metadata for FILE SIZE pertaining to the Initial Production (Dkt. 409 at 63), nor
did it provide log files identifying missing metadata for CUSTODIAN, MIME TYPE, or
absence of native files (id. at 74).
Mr. Schatz opined that the deficient and missing metadata issues were caused by
the government’s processing of the ESI. (Id. at 65).

14
The parties have stipulated that the term “Laptop Production” refers to the
production of ESI from three computers (Michael Tremiti’s laptop, Paul White’s laptop,
and Kristy Trombley’s desktop) on December 13 and 16, 2019. (Dkt. 436 at 2).
- 24 -

2. Mr. Martin’s Testimony
Mr. Martin testified that he pulled a random sample of documents from the
Relativity database that did not have any metadata, and he reprocessed the samples of
native documents using three different processing software programs (Relativity, Law, and
eCap), successfully extracting DATE, FILE EXTENSION, FILE SIZE, FILE NAME, MD5 HASH,
and MIME TYPE metadata that was not contained in the government’s productions (even
after the overlay files were provided). (Dkt. 409 at 109-21; see Ex. D (Dkt. 346-3)). Mr.
Martin also testified that he was able to extract metadata not provided by the government
using the Nuix processing software. (Dkt. 418 at 564-66).
The charts prepared by Mr. Martin reflected, in some instances, different values in
certain metadata fields depending on the processing tool utilized. (Dkt. 346-3). Mr. Martin
explained that different processing tools can result in different metadata values. (Dkt. 409
at 166-67). Mr. Martin testified that emails produced as part of the government’s electronic
productions were pulled from OST and PST files,15 and it is typical to process emails out
of a container file into individual emails. (Id. at 149-51). Mr. Martin also testified that
when he reprocessed the data he did not reprocess the original OST or PST files, but rather
the files that had been provided by the government. (Id. at 151).

15
OST stands for “offline storage table” and PST stands for “personal storage table.”
(Dkt. 401 at 27-28). PST and OST files were described at the evidentiary hearing as
“containers of e-mails collected by individual mailboxes or servers.” (Dkt. 417 at 186).
They were also referred to generically as “container files.”
- 25 -

Mr. Martin opined that the deficient and missing metadata issues in the
government’s various productions were caused by the government’s processing of the ESI.
(Id. at 135-36).
3. Mr. Hyde’s Testimony
Mr. Hyde testified that he began processing the government’s August Production16
for loading into the Relativity database shortly after receiving the production, and he
noticed a missing load file17 whereupon he immediately notified the Gibson Dunn attorneys
involved in the case. (Dkt. 417 at 271-73). Mr. Hyde testified that the missing load file
reflected 886,507 records (or 60% of the August Production). (Id. at 206). Mr. Hyde
further testified that a missing load file is not a common occurrence and that it appeared
the government forgot to include it with the August Production. (Id. at 208).
Like Mr. Schatz and Mr. Martin, Mr. Hyde similarly testified about various missing
metadata fields from the government’s productions to Gibson Dunn, and that upon
reprocessing the native files produced by the government in the August Production, he was
able to extract DATE values for all but 0.2% of the hundreds of thousands of emails in the
August Production for which the government did not provide such values (Exhibit RM 1
(Dkt. 349-1); Dkt. 417 at 215), and FILE EXTENSION, FILE SIZE and MD5 HASH values for

16
The parties have stipulated that the “August Production” refers to the six
productions of ESI by the government to defendant Robert Morgan on August 8, 2019.
(Dkt. 436 at 2).
17
The term “load file” is used interchangeably with “DAT” file (i.e. a file with a .dat
file extension) and has been described as “a limited text file with the metadata fields
populated” that is “used to import the data into Relativity into the appropriate fields.” (Dkt.
417 at 187).
- 26 -

all of the many documents for which such values were missing in the August Production
(see Exhibit RM 2 (Dkt. 349-2); Exhibit RM 3 (Dkt. 349-3); Exhibit RM 5 (Dkt. 349-5);
Dkt. 417 at 225-27, 234-36, 244).
Mr. Hyde testified that the deficiencies he saw with the electronic discovery were
atypical, and that the issues were likely caused during processing by the government. (Dkt.
417 at 253-54). Mr. Hyde testified that the normal practice when there is an error with an
ESI production is to “go back and consult with the attorneys and say, this is missing and
there is an error and we’ll have the individual who sent us the production to correct it.”
(Id. at 195-196).
In response to government cross-examination, Mr. Hyde admitted that much of the
metadata that he was identifying at the hearing as missing or improperly formatted had
never been identified for the government prior to the hearing. (Id. at 282, 298, 299-300,
303). Indeed, the last error log sent by Gibson Dunn to the government for the August
Production was in December 2019. (Id. at 303-04). Mr. Hyde testified on cross-
examination that the government’s overlay file fixed most of the records identified by
counsel from the August Production that contained misformatted DATE values, and the
government provided the overlay file one week after the documents were first identified
by Gibson Dunn. (Id. at 281-82; see Dkt. 444 at 18-19).
The chart introduced as Exhibit RM 1 (Dkt. 349-1) purported to depict the summary
of deficiencies in the August Production with respect to the DATE metadata field, based on
an analysis of the initial production, the production post-overlay, and after Mr. Hyde
reprocessed the production. However, Gibson Dunn never identified any issues with
- 27 -

respect to missing DATE metadata, only issues where the DATE metadata field had been
misformatted. (Dkt. 417 at 280-82). Thus, the overlays were never intended to address
issues that had not been identified (such as missing DATE metadata) and yet Exhibit RM 1
suggests that the government overlay did not fix this issue. (See Dkt. 349-1 at 3).
Similarly, Exhibit RM 2 (Dkt. 349-2) identifies metadata deficiencies for the August
Production post-overlay, but the overlay was never intended to address missing FILE
EXTENSION metadata because that issue was never identified by Gibson Dunn as a problem
prior to the hearing. (Dkt. 417 at 287).
Mr. Hyde’s charts analyzing the Laptop Production included the system files even
though those files had been subsequently identified by an overlay file (as acknowledged in
the chart produced by D4 (see Dkt. 346-2 at 2)). When testifying about Exhibit RM 2 (Dkt.
349-2), Mr. Hyde initially testified that no overlay files were provided for the Laptop
Production to fix the missing FILE EXTENSION information (Dkt. 417 at 226), but he
ultimately agreed in response to cross-examination by the government that, in fact, an
overlay file was provided with respect to the Laptop Production that “substantially reduced
the number of records where the file extension field was missing” (id. at 292-93).
Moreover, Mr. Hyde conceded that his analysis of the Laptop Production as reflected in
Exhibit RM 2 did not take into account application of the overlay file which removed the
system files. (Id. at 293).
Mr. Hyde testified that it would not be typical to produce an actual PST file as the
native file during electronic discovery. (Id. at 284).
- 28 -

4. Mr. Bowman’s Testimony
Mr. Bowman testified that he processed the data from two of the seized Morgan
Management servers—the Exchange and Barracuda servers—using the USAO-WDNY’s
processing tool (Nuix) and its default template. (Id. at 326-330, 339). Another entity—
the Litigation Technology Support Center in Columbia, South Carolina (“LTSC”)18
processed some of the hard drives seized from the May 2018 search warrant using a
different processing tool called Venio. (Id. at 338-39; Dkt. 418 at 469). Additionally, Mr.
Bowman testified the Federal Housing Finance Agency (“FHFA”) processed the Laptop
Production using a “much more robust” version of Nuix19 than the system possessed by the
USAO-WDNY. (Dkt. 417 at 339; 341-42). Mr. Bowman never raised any concerns with
LTSC that it was planning to use a processing tool different than Nuix. (Dkt. 418 at 469-
70). Mr. Bowman never reprocessed the two servers that he had initially processed in 2018
in order to comply with the DPP, nor did he request that LTSC or FHFA reprocess any of
the data. (Id. at 464-65).
Mr. Bowman was the only witness who testified with any personal knowledge about
the negotiations surrounding the DPP, and he could not recall any discussions during those
negotiations about the processing tools that would be utilized or the type of native file that
would be analyzed for purposes of creating a load file. (Id. at 514-15). Mr. Bowman

18
Mr. Bowman described LTSC as “government equipment owned, but contract run”
and a “vendor-type operation.” (Dkt. 417 at 338).
19
Mr. Bowman clarified that “more robust” meant able to extract data from the source
material faster, not able to extract more data. (Dkt. 417 at 342).
- 29 -

explained that a file extension would not be provided for an email extracted from a
container file, even if it was produced in a derivative native format with a file extension,
because the load file was created from the native as it existed in the container file, not the
native that was ultimately provided to the defense. (Id. at 513).
Mr. Bowman testified that the date field requested by the defense and included in
the DPP was “unusual” because it was limited to “date sent,” (Dkt. 417 at 346), although
the template document used by the parties to draft the DPP was the SEC’s Data Delivery
Standards and it appears that the government proposed the initial protocol with the date
sent field. (See Dkt. 418 at 452-56, 459-62; Exhibit O; Exhibit Q).
Mr. Bowman testified that the government did not produce the original native
container files, but instead “created” files from records extracted from those container files
and produced those “created” files as “natives.” (Dkt. 418 at 513-14). However, the
metadata provided to Defendants was extracted from the original native container files, not
from the native files that were created and produced to Defendants. (Id. at 545-47).
Mr. Bowman testified that he was instructed by “the AUSAs” to leave the
CUSTODIAN metadata field “blank” for the Laptop Production and instead provide a unique
“Q value” in the PATH metadata field which identified “where the laptops came from.” (Id.
at 552-53). The government overlay produced on January 29, 2020, provided the missing
CUSTODIAN information for the Laptop Production. (Dkt. 436 at 4; Dkt. 346-2).20

20
The evidentiary hearing established that of the 90,895 documents in the Laptop
Production that did not contain MD5 Hash values, the government’s overlay file produced
on January 6, 2020, provided the missing information for 52 of those documents. (Dkt.
346-2 at 2-3; Dkt. 436 at 3-4). Mr. Bowman explained that the MD5 Hash values for those
- 30 -

The DPP required that DATE metadata be provided in the format “mm/dd/yyyy
hh:mm AM/PM” and provided an example of DATE metadata in Addendum A:
“10/12/2010 07:05 PM.” (Ex. A (Dkt. 27-1 at 3-4)). Mr. Bowman testified as follows in
response to questions by the Court as to why certain DATE values did not conform to the
DPP:
Q Why was the initial file, why did that not contain the date format as
provided in the document production protocol?
A To be honest, my team missed it when we were looking at it. We

didn’t realize, because a million plus records, it was near the bottom, we
didn’t see it.
Q When you say didn’t see it. You missed it. Where in the process did
you miss it?
A What happened in the initial processing that was done before there
was a document protocol, that one field that got loaded, had the long file date
in it. Normally we produce with a different field. But instead they produced
the one with the long file in it.
Q Was that something because of a setting in Nuix that you had?
A Yes.
Q And once the document protocol was entered into, and I’m assuming
you reproduced the previous productions using the document protocol.
A Yes. But, unfortunately, that was missed, because we gave the

production came up from the LTSC and then we gave them the production.
Unfortunately, during the quality control check, that was missed and those
files were produced with the long file date. They should have been produced
with the smaller date, which we fixed.

52 documents were not provided initially because the FHFA had the Nuix settings at the
“lower industry standards” so that files of a certain size did not have MD5 Hash values.
(Dkt. 418 at 534).
- 31 -

(Dkt. 418 at 534-35).
5. Mr. Marchese’s Testimony
Mr. Marchese was retained by the government to provide an opinion concerning its
compliance with the DPP. Mr. Marchese testified that in order to analyze the productions,
he loaded the DAT files from both the Initial/August Productions and the Laptop
Production into Sequel, which he described as “the back end database that is used behind
Relativity.” (Dkt. 401 at 21). According to Mr. Marchese, this was necessary to make any
meaningful findings about whether the government productions complied with the DPP.
(Id. at 22).
Mr. Marchese testified that different processing tools can produce different results
from the processing of ESI. (Id. at 14, 67-68; see Dkt. 420 at 687-88 (agreeing that if a
processing tool different than Nuix is used, it might “scrape” different information)). When
parties are negotiating a DPP, he testified that they should understand what processing tool
is going to be used to create the metadata fields. (Dkt. 401 at 68).
Mr. Marchese testified that it has been the “custom in electronic discovery for the
last couple of decades” to produce files extracted off of OSTs and PSTs. (Id. at 106). In
other words, by convention in electronic discovery, emails that are contained in an OST or
PST file are broken into singular units and turned into files with an extension of .msg
(“MSG”) or .eml (“EML”). (Id. at 28-29).
Mr. Marchese testified that simply identifying missing metadata fields from a
production is not enlightening without understanding why values in the particular metadata
field are absent. (Id. at 25-26). Mr. Marchese explained that where Defendants reprocessed
- 32 -

the ESI and extracted metadata that was not previously produced, they were using “their
processing tool on a different set of information than the government did”—namely the
EMLs that were provided, not the original source OST and PST files from which the EMLs
were derived. (Id. at 53, 56; see also id. at 57 (“[T]he EML files, of course they have file
extension and size, they were created by the tool. But natively that information doesn’t
exist and could not be extracted by Nuix.”); id. at 60 (“For every tool he used, he
reprocessed the items we exported, not the same original source content. So to imply that
that somehow found values that the government failed to find, I think, is not correct.”); id.
at 108 (it is “misleading to imply to the Court that reprocessing a different source material
. . . somehow proves that the government didn’t pull something out that it should have”)).
For instance, the FILE EXTENSION metadata field would not be included within these
records because file extensions for each file do not exist in the native content (i.e. in the
OST or PST file). (Id. at 32). “The Nuix tool extracts it prior to the new MSG or EML
files being created.” (Id.).
Mr. Marchese testified that with respect to files identified by Defendants as missing
metadata pertaining to FILE SIZE, FILE TEXT, and MD5 HASH, this was because the files
were “compound files that were not readily processable by the eDiscovery processing
tool.” (Id. at 37). As a result, he concluded that the government’s production complied
with the DPP. (Id. at 38, 49, 50). Moreover, he disagreed that the absence of this metadata
impacted the usability of the production. (See, e.g., Dkt. 420 at 688-89 (testifying that a
user could filter and sort by file extension through Relativity by utilizing the information
in the link field that included the full path to the near native document)).
- 33 -

Mr. Marchese testified that the CUSTODIAN metadata field is filled based on
information collected and inputted by a human. (Dkt. 401 at 112).
Mr. Marchese testified that the emails identified by Defendants as containing
missing DATE metadata nearly all came from a large OST file. (Id. at 27). Mr. Marchese
initially testified that the government complied with the DPP as it related to the DATE
metadata field because “the messages that lacked that value were not sent by the owner of
that OST on that computer.” (Id. at 35, 39, 61-63). Mr. Marchese testified that he reviewed
the native files of the emails at issue and he determined that they did not have values that
Defendants claimed were missing. (Id. at 36; see id. at 39 (“you can’t claim something
was sent when it wasn’t sent on that computer by that user”)). Mr. Marchese explained:
But ‘date sent’ is a specific date field. If you don’t send an email, it doesn’t
get populated. If you just receive an email in your mail archive, even though
it was received by somebody at some point in its life, and there is information
about that being sent in the header and other fields, it doesn’t have a date sent
value.
(Id. at 61-62).
Mr. Marchese later qualified his testimony once the defense disclosed its intention
to present rebuttal evidence showing that DATE metadata was provided for emails even
where the custodian or owner of the OST file was not the sender of the email. Mr.
Marchese described a variety of additional factors that could impact the extraction of DATE
metadata for emails. (Dkt. 420 at 638-44; see id. at 639 (“There are a myriad of factors
that influence what date properties are in these records and what did can be extracted from
them. And this exhibit helped me learn about another one.”)). However, according to Mr.
Marchese, the “processing tool can only extract what is in the files,” and he opined that in
- 34 -

this case, the processing tool extracted what it could, consistent with the DPP. (Id. at 644-
45). Mr. Marchese testified that this did not change his testimony about the root cause of
the missing values. (Id. at 644; see id. at 645 (testifying that the processing tool could not
“extract what it didn’t understand to be a correct date sent.”)). Mr. Marchese also opined
that if a “sort date” metadata field had been utilized instead of the “date sent” field that
Defendants wanted included in the DPP, the DATE metadata field would have been
populated for the vast majority of records. (Id. at 646-48).
Mr. Marchese explained that he did not study the records reflected in the exhibit
prepared by the defense for rebuttal (Exhibit R) prior to initially testifying because the
records had not been identified by the defense as having problems. (Id. at 631). Defendant
Todd Morgan contends in his post-hearing memorandum that Mr. Marchese’s attempt to
qualify his testimony concerning the rebuttal proof is contradicted by reference in his report
to one of the emails contained in Exhibit R. (Id. at 669-70; see Dkt. 435 at 31). However,
the copy of the email reprinted in Mr. Marchese’s report was identified as coming from
Kevin Morgan’s computer, and it did not contain any value in the DATE field. (Dkt. 420
at 701-02, 711). In other words, reviewing that particular email would not have alerted
Mr. Marchese to the information revealed by the defense rebuttal proof that, in some
instances, metadata for DATE was provided even where the custodian was not the sender
of the email.
6. Defendant Todd Morgan’s Rebuttal Proof
Rebuttal proof was presented establishing that the same email was produced in four
different ways by the government. (See Dkt. 435 at 30; Exhibit R). Mr. Schatz testified
- 35 -

on rebuttal that 142,458 emails were contained in the Laptop Production. (Dkt. 420 at 692-
93). Of those, all but 72 were produced by the government with a date in the DATE
metadata field. (Id. at 693). Moreover, 140,065 of the emails were extracted from OSTs
belonging to the three custodians of the computers that comprised the Laptop Production.
(Id. at 693-94). Of those, 86,735 were received and not sent by the custodians and yet, in
all instances, the DATE metadata field was provided. (Id. at 694-95).
The rebuttal proof thus established that DATE metadata was provided for emails that
were not sent by the owner of the OST on a particular computer, but it did not establish
that the government failed to provide DATE metadata for emails where the custodian or
owner of the OST file was the actual sender of the email.
K. Post-Hearing Proceedings
Defendant Todd Morgan submitted his post-hearing brief on August 13, 2020 (Dkt.
435), and defendants Robert Morgan and Michael Tremiti submitted their respective post-
hearing briefs on August 14, 2020 (Dkt. 437; Dkt. 438). The government submitted its
post-hearing brief on August 28, 2020 (Dkt. 444), and defendants Robert Morgan, Todd
Morgan, and Michael Tremiti submitted reply briefs on September 2 and 3, 2020 (Dkt.
449; Dkt. 452; Dkt. 454). On September 8, 2020, defendant Frank Giacobbe filed a motion
to join in the other defendants’ arguments. (Dkt. 455).
On August 31, 2020, defendant Robert Morgan filed a motion to compel seeking
the dates on which the materials included in the government’s June 25, 2020 production
were produced to the government by third parties, and copies of the requested grand jury
subpoenas. (Dkt. 439; Dkt. 442). Specifically, defendant Robert Morgan contends that
- 36 -

this recent production may constitute an untimely production of Rule 16 material, which
would further support dismissal of the Superseding Indictment with prejudice. (Dkt. 439-
1 at 4 ).
The government filed a response in opposition on September 4, 2020 (Dkt. 453),
and defendant Robert Morgan filed a reply on September 8, 2020 (Dkt. 456). The record
establishes that the materials at issue with this motion to compel relate to approximately
38,000 pages of materials produced as Rule 16 discovery material by the government in
June 2020, some of which were obtained in 2020 in response to grand jury subpoenas
issued in November 2019. (Dkt. 439-1 at 4; Dkt. 439-4-; Dkt. 453 at 4; Dkt. 456 at 6). In
other words, the documents at issue were obtained by the government after the July 31,
2019 deadline set by the Magistrate Judge, and therefore relate to the government’s
continuing discovery obligations—not its obligation to produce discovery by the July 31,
2019 deadline.
Oral argument with respect to both the speedy trial motions and the motion to
compel were held before the undersigned on September 10, 2020, at which time the Court
reserved decision. (Dkt. 458).
- 37 -

II. ANALYSIS
As discussed further below, the Court concludes that the statutory speedy trial clock
has expired, necessitating dismissal of the Superseding Indictment. However, the Court
further concludes that the dismissal should be without prejudice, and that Defendants’
constitutional rights to a speedy trial have not been violated. Because Defendants’ speedy
trial arguments are necessarily tied to the status of voluntary discovery, the Court first
addresses its findings with respect to the government’s compliance with its obligations
under Rule 16 to provide voluntary discovery, before turning to whether Defendants’
statutory or constitutional speedy trial rights have been violated.
A. Findings of Fact with Respect to Voluntary Discovery
Defendants have established that the government failed to produce all Rule 16
discovery in its possession at the time of the May 29, 2019 status conference, by the
deadline of July 31, 2019. However, the Court disagrees that the government’s errors—
particularly with respect to electronic discovery and its compliance with the DPP—are as
egregious as claimed by Defendants. While some of the errors in the electronic discovery
were due to the government’s processing of the ESI (and failure to adequately reprocess it
after the DPP was agreed upon), the Court also concludes that Defendants and the
government were not always communicating effectively regarding electronic discovery.
Issues surrounding electronic discovery are complicated—and they become even
more complicated when dealing with the volume of information at issue in this case. There
is no question that the government’s conduct was, at times, sloppy and inconsistent, and
this led to various problems with the discovery. On the other hand, while it is not
- 38 -

Defendants’ burden to ensure the government’s compliance with its Rule 16 obligations,
any electronic discovery production of this nature necessarily requires parties to work
together (with the assistance of IT personnel) to sort through issues in the production.
While the Magistrate Judge’s imposition of a “club” at the May 29, 2019 status conference
was intended to promote the government’s compliance with its Rule 16 obligations, it
ultimately had the effect of incentivizing Defendants to establish the government’s
noncompliance with its discovery obligations (as opposed to motivating the parties to work
together to resolve any electronic discovery issues). Thus, while the impetus for the “club”
was plainly driven by the historical failures of the government to meet the deadlines set by
the Magistrate Judge, instead of rectifying those problems it ultimately spurned extensive
litigation on whether the government had failed to comply with the July 31, 2019 deadline.
To be clear, the Court does not believe the record supports a finding that any party
acted in bad faith. Rather, the discovery in this case was significant, and the government
failed to effectively manage that discovery. In the end, because of its own negligence, the
government did not meet the discovery deadline set by the Magistrate Judge.
1. The Laptop Production and Todd Morgan iPhone
In November 2019, the government disclosed that it had missed three devices seized
as part of the May 2018 search warrant, and accordingly never processed those devices for
production. Despite agreeing that it would report back concerning the extent of ESI
contained on the devices that had not been previously produced as part of discovery, the
government still has failed to do so—representing during the oral argument on September
10, 2020, that it was still attempting to ascertain that information. At that same oral
- 39 -

argument, defense counsel suggested that over 600,000 documents were produced as part
of Rule 16 discovery in the Laptop Production that had not been previously produced, and
the government conceded it had no information to dispute that figure. Thus, there is no
question that the government failed to produce a significant amount of Rule 16 discovery
contained within these three devices by the deadline of July 31, 2019.
There is also no dispute that the government failed to produce Rule 16 discovery
contained in another device seized during the May 2018 search warrant execution—Todd
Morgan’s iPhone. This was another device that was missed by the government. The
government still has failed to produce Rule 16 discovery from this device, although the
current delay relates to privilege issues surrounding the device and a privilege review by
defense counsel. Nonetheless, by the July 31, 2019 deadline, the government failed to
produce Rule 16 discovery contained on this iPhone and, in fact, had not even processed
the device for privilege review.
Accordingly, the record is clear that of the eight computers seized pursuant to the
May 2018 search warrant, the government failed to provide Rule 16 discovery for three of
those devices by the July 31, 2019 deadline. Similarly the government failed to provide
(and still has failed to provide) Rule 16 discovery for defendant Todd Morgan’s iPhone21
seized pursuant to the May 2018 search warrant.22

21
The government also seized an iPhone from defendant Robert Morgan but that has
not been processed because the government has been unable to crack the passcode. (See
Dkt. 274 at 2-3).
22
Notwithstanding the government’s attempts to argue otherwise, the Court does not
view as relevant for purposes of this Decision and Order the fact that the government
- 40 -

2. Findings About Electronic Discovery Based on the Evidentiary

Hearing
a. Scope of Hearing and Burdens
Federal Rule of Criminal Procedure 12(d) provides that “[w]hen factual issues are
involved in deciding a motion, the court must state its essential findings on the record.” To
aid it in making such factual findings, the Court has discretion to order an evidentiary
hearing. See United States v. Greenberg, 835 F.3d 295, 305 (2d Cir. 2016); United States
v. Bout, 666 F. App’x 34, 36 (2d Cir. 2016); United States v. Solnin, 81 F. Supp. 3d 193,
204 (E.D.N.Y. 2015). An evidentiary hearing is appropriate where there are factual issues
that cannot be ascertained from the written record. See United States v. Pavloyianis, 996
F.2d 1467, 1475 (2d Cir. 1993); see also Bout, 666 F. App’x at 39 (affirming denial of
request for evidentiary hearing where it was “unnecessary to develop the record”). Here,
in order to resolve Defendants’ speedy trial motions, the Court concluded that an

ultimately returned some of the devices to their owners. According to the government, the
actual laptops and desktops were returned to Morgan Management on May 17, 2018—days
after execution of the search warrants and at a time when defendant Robert Morgan
allegedly still owned the company—and Todd Morgan’s iPhone was returned to his
counsel on October 16, 2018. (Dkt. 262-1 at 4 n. 3). Returning devices that have been
seized as part of the normal processing of search warrant material does not comply with
the government’s obligations under Rule 16. In fact, some of the defendants were not even
parties at the time the items were seized and then returned.
Similarly, the Court acknowledges that on February 10, 2020, the government
produced mirror images of the laptops and desktops seized pursuant to the May 2018 search
warrant, as well as a copy of the extracted files for the iPhone associated with defendant
Todd Morgan. (Id. at ¶ 16). On February 19, 2020, the government produced mirror
images of data seized from Morgan Management servers pursuant to the May 2018 search
warrant. (Id. at ¶ 17). However, February 2020 was long past the July 31, 2019 voluntary
discovery deadline, and the government has conceded at various times that producing
mirror images does not constitute compliance with Rule 16 and the DPP.
- 41 -

evidentiary hearing was needed to resolve factual disputes concerning whether the
government’s electronic productions complied with the DPP.
With respect to the standard of proof at the hearing, the Court agreed with the parties
that the preponderance of the evidence standard applied. (See Dkt. 242 at 4; Dkt. 244 at 7-
8; Dkt. 245 at 2; Dkt. 264 at 2 n. 1); see also United States v. Chimurenga, 760 F.2d 400,
406 (2d Cir. 1985) (“Proof by a preponderance of the evidence is the standard usually used
in pretrial proceedings.”); United States v. Jurado-Rodriguez, 907 F. Supp. 568, 579
(E.D.N.Y. 1995) (“In criminal pretrial proceedings, unless Congress provides to the
contrary, proof by a preponderance of the evidence is the standard usually used.” (quotation
omitted)).
With respect to the burden of proof at the hearing, the plain language of the Speedy
Trial Act provides that “[i]f a defendant is not brought to trial within the time limit required
by [the Act] . . ., the information or indictment shall be dismissed on motion of the
defendant. The defendant shall have the burden of proof of supporting such motion . . . .”
18 U.S.C. § 3162(a)(2) (emphasis added).23 Relatedly, the general rule is that a defendant
alleging a Rule 16 violation bears the burden of demonstrating that such a violation has
occurred. See, e.g., United States v. Stevens, 985 F.2d 1175, 1180 (2d Cir. 1993); United

23
The only identified exception to this rule is for exclusions of time under 18 U.S.C.
§ 3161(h)(3) (delay resulting from the absence or unavailability of the defendant or an
essential witness), for which “the Government shall have the burden of going forward with
the evidence . . . .” Id. § 3162(a)(2). In other words, the Speedy Trial Act itself squarely
places the burden of demonstrating a violation on Defendants, subject to one exception not
relevant here.
- 42 -

States v. Maniktala, 934 F.2d 25, 28 (2d Cir. 1991); United States v. Urena, 989 F. Supp.
2d 253, 261 (S.D.N.Y. 2013).24 However, even the government acknowledged that if
Defendants established a violation of the Speedy Trial Act, it would need to come forward
with evidence demonstrating the reason for any delay. (Dkt. 264 at 2 (citing United States
v. Caparella, 716 F.2d 976, 980 (2d Cir. 1983)).
b. Findings of Fact
The Court states up front that, despite each party’s claims about the credibility of
the other party’s witnesses, the Court does not find that any of the witnesses were
intentionally testifying falsely. Rather, electronic discovery is a complicated and very
technical subject. As a result, facts can be easily spun in a light most favorable to one
party’s position or the other. That occurred here on behalf of all parties. Nonetheless, the
Court does not conclude that any of the witnesses were not credible. Moreover, based on
the Court’s careful review of the record, it reaches the conclusions as set forth below.

24
The Court was not persuaded by Defendants’ arguments that they had presented
sufficient evidence of a violation in advance of the hearing so as to shift the burden to the
government. Defendants relied on the “[t]he ordinary rule, based on considerations of
fairness,” that the law “does not place the burden upon a litigant of establishing facts
peculiarly within the knowledge of his adversary.” United States v. N.Y, New Haven &
Hartford R.R. Co., 355 U.S. 253, 256 n.5 (1957). However, that common law rule does
not apply where, as here, Congress has expressly allocated the burden of proof in a contrary
fashion. Further, there is nothing in the language of the Speedy Trial Act to support the
notion that once a defendant makes a preliminary showing, the burden shifts to the
government to establish that the clock has not expired. “Where Congress intends a statute
to allocate the burden of proof to different parties on different issues, it does so expressly.”
United States v. Technodyne LLC, 753 F.3d 368, 380-81 (2d Cir. 2014). Indeed, Congress
did so with the Speedy Trial Act, carving out from the general rule that the defendant bears
the burden of proof exclusions of time under § 3161(h)(3). If Congress had wanted to
create further nuances in the allocation of the burden of proof, it would have done so.
- 43 -

First, the government’s Initial/August Productions of electronic discovery contained
misformatted DATE metadata information that did not comply with the requirements of the
DPP. The misformatted DATE metadata was caused by Mr. Bowman and his team failing
to catch the errors while conducting quality review. The misformatting occurred during
the initial processing of the ESI prior to the DPP being entered into, and if the government
had reprocessed the ESI after the DPP was agreed upon, these errors could have been
avoided. Instead, the government did not reprocess the ESI, and the quality review
conducted by the government was insufficient to catch these errors.
Second, the absence of metadata for many of the fields in the Initial/August
Production was the result of metadata being pulled from OST and PST container files. In
other words, the metadata did not exist in the native files and therefore the processing
software was unable to extract metadata that did not exist. This was the case with respect
to various metadata fields, including for example FILE EXTENSION. The government did
not violate the DPP by failing to provide this metadata. Moreover, Defendants’
reprocessing of the files failed to establish that metadata existed that was not provided by
the government, because Defendants were not processing the same material as processed
by the government. For instance, Defendants reprocessed EML files that were pulled and
created from the PST or OST files, and thus they pulled metadata from the EML files, but
the government applied its processing software to the PST or OST files. As a result, the
absence of metadata in this regard does not establish an error on the part of the government
or violation of the DPP.
- 44 -

Third, although the DPP required the production by the government of native files,
defined as “the format in which they are ordinarily used and maintained during the normal
course of business,” (Dkt. 27-1 at 2), the Court concludes that the government’s production
of the near native or derivative native files from the OST or PST files did not violate the
DPP because this is standard practice in the eDiscovery field. In fact, the Court concludes
that if the government had produced the OST or PST files as the native files—as opposed
to converting the emails into single files with an .eml or .msg extension—this would have
likely prompted even more complaints from Defendants.
Fourth, the fact that the government was producing near native and derivative native
files from the container files, without producing metadata for the near natives or derivative
natives, led to a significant amount of confusion with respect to the production. All parties
bear some responsibility for that confusion and the inability to effectively communicate
through their respective IT specialists about those issues. It ultimately took many status
conferences and a week-long evidentiary hearing to establish that the differences resulting
from processing true natives as opposed to near natives or derivative natives accounted for
many of the discrepancies identified by Defendants. There are certain inconsistencies to
the government’s approach here—it produced near native or derivative native files, but
then did not correspondingly provide metadata for those files. Nonetheless, the Court
concludes that the government proceeding in this manner did not constitute a technical
violation of the DPP. Indeed, the only evidence in the record about discussions during the
negotiation of the DPP suggests that nothing was discussed about this issue.
- 45 -

Fifth, the absence of DATE metadata (missing metadata, not misformatted) from the
Initial/August Production was likely caused by a variety of factors, including the fact that
during the processing of this production the software was directed to “scrape” only very
specific information with respect to “date sent.” The Court agrees that the DPP did not
specify the processing software that was to be used, and the Court also credits Mr.
Marchese’s and Mr. Bowman’s testimony that a more expansive DATE field (such as “sort
date”) could have pulled more information. However, it is also apparent that the Laptop
Production pulled far more DATE metadata than was provided for the Initial/August
Production. In other words, allegedly using the same process and same tools, the Laptop
Production resulted in DATE metadata for almost all of the emails produced, but metadata
like this was missing from the Initial/August Production. This suggests that FHFA’s
processing of the ESI for the Laptop Production in December 2019 was handled differently
than the earlier processing by differing agencies. There is no reason to believe that the
factors that Mr. Marchese testified to as influencing the production of DATE metadata
would have influenced the Initial/August Productions any differently than the Laptop
Production. Thus, the Court concludes that Defendants established that the extent of
missing DATE metadata for the Initial/August Production was likely the result of the
processing of the data, and constituted a violation of the DPP by the government
Sixth, the Court does not find that defendant Robert Morgan established that the
missing load file with the government’s August Production was the result of government
error. Although Mr. Hyde testified generally that one of the first steps after receiving an
ESI production from a third party is to examine the load file and that he noticed the missing
- 46 -

load file when he loaded the data into the Relativity database (Dkt. 417 at 187-88, 271), no
evidence was offered by defendant Robert Morgan at the hearing as to the specific
mechanics of how the discovery of the load file occurred, no other defendant experienced
a similar issue, and the government has credibly represented that its copy of the production
contained the load file (see Dkt. 143-1 at ¶ 10). Moreover, even if the load file was missing
because of an error by the government, the Court is not persuaded that it would be
appropriate to consider in connection with the pending motions. Mr. Hyde testified that
he noticed the missing load file when he was loading the data into the Relativity database,
that he began processing the ESI for loading when it was received in August 2019, and that
he immediately notified attorneys at Gibson Dunn of the missing load file. (Id. at 271-73).
Yet, counsel for defendant Robert Morgan never followed up with the government
concerning the missing load file until October 30, 2019—i.e. outside the speedy trial clock
window of 70 days if it began to run on August 1, 2019. (Dkt. 262-1 at ¶ 52).
Seventh, any errors with respect to CUSTODIAN metadata were the result of human
error on the part of the government. Moreover, the government prosecutors expressly
instructed Mr. Bowman not to produce CUSTODIAN information for the Laptop Production,
even though the government had provided similar information previously. Failing to
provide the CUSTODIAN information violated the DPP.
In sum, the Court believes that it would have been much more prudent if the
government, after reaching agreement with the defense about the DPP, had utilized a
competent vendor to process the ESI (and all the previously produced ESI) in the same
manner with the same settings and utilizing the same tools. That did not occur here, which
- 47 -

led to electronic productions being produced in an inconsistent manner and, in some
instances, in violation of the DPP. Although the government contends that there was no
need to reprocess the data because any errors could be addressed through an overlay file
(Dkt. 444 at 40-41), that approach shifts the burden to Defendants to identify errors in the
productions. By not reprocessing the data after the DPP was entered into—and by allowing
three different agencies to process the data using different processing tools—the
government created a situation where there were errors and inconsistencies in its
productions that were only addressed if identified by Defendants. Although the Court
agrees, as Defendants’ own witnesses testified, that electronic discovery necessarily
involves back-and-forth between parties so as to ensure the adequacy of any electronic
production, the government’s approach necessarily led to its failure to produce electronic
discovery in accordance with the DPP, by the deadline of July 31, 2019. The errors were
not as egregious as claimed by Defendants, and as noted above, the Court does not agree
with Defendants as to all their contentions concerning problems with the electronic
productions—but nonetheless, there were errors and a lack of compliance with the DPP.
3. Other Discovery Issues
Defendants have also identified a host of other discovery issues. For instance,
Defendants cite to the failure of the government to produce the contents of the Larry Hill
server as a violation of Rule 16 supporting a dismissal on speedy trial grounds. (See, e.g.,
Dkt. 435 at 38). However, that server was not in possession of the government at the time
of the May 29, 2019 status conference—or even by the July 31, 2019 deadline—and the
Magistrate Judge’s speedy trial order made it clear that the condition imposed applied to
- 48 -

discovery in the government’s current possession, not its continuing discovery obligations.
Similarly, with respect to defendant Robert Morgan’s pending motion to compel addressed
to additional material produced by the government in June 2020, again, this information
pertained to the government’s continuing discovery obligations—it did not represent
material in its possession on July 31, 2019. To the extent Defendants argue that these
examples represent a manifestation of the government’s continuing discovery failures,
necessitating a dismissal with prejudice, the Court addresses that argument further below.
Defendants also contend that the government applied inadequate search terms to the
electronic discovery it produced, insufficient to satisfy Rule 16. (Dkt. 217 at 13-14). Even
if true, the record does not support the notion there was ever any discussion about the scope
of the search terms being applied to the seized electronic devices in order to comply with
Rule 16. Again, the Court will address this issue further in connection with its analysis of
whether the dismissal should be with or without prejudice.
Finally, as noted above, a motion is pending related to the government’s alleged
failure to segregate privileged information appropriately, resulting in certain allegedly
privileged information being presented to the grand jury. Again, this issue will be
addressed in connection with the Court’s analysis of whether the dismissal should be with
or without prejudice, but it does not affect the Court’s analysis of whether the speedy trial
clock has expired.
- 49 -

B. More Than 70 Days Have Elapsed from the Speedy Trial Clock
1. The Speedy Trial Act
The Speedy Trial Act, 18 U.S.C. § 3161 et seq., requires that a criminal defendant’s
trial commence within 70 days of a defendant’s initial appearance or indictment, but
excludes from the 70-day period days lost due to certain types of delay. Section 3161(h)
of the Act specifies the types of delays that are excludable from the calculation, some of
which are automatically excludable but others of which are excludable only if a court
makes certain findings enumerated in the statute. See Bloate v. United States, 559 U.S.
196, 203 (2010). The time needed for the government to produce voluntary discovery and
for the defense to prepare pretrial motions is not automatically excluded from the speedy
trial clock, and therefore to stop the speedy trial clock an exclusion in the interest of justice
must be granted pursuant to 18 U.S.C. § 3161(h)(7).
The Supreme Court has recognized the need for “procedural strictness” in granting
an exclusion pursuant to § 3161(h)(7):
The exclusion of delay resulting from an ends-of-justice continuance is the

most open-ended type of exclusion recognized under the Act and, in allowing
district courts to grant such continuances, Congress clearly meant to give
district judges a measure of flexibility in accommodating unusual, complex,
and difficult cases. But it is equally clear that Congress, knowing that the
many sound grounds for granting ends-of-justice continuances could not be
rigidly structured, saw a danger that such continuances could get out of hand
and subvert the Act’s detailed scheme. The strategy of § 3161(h)[7] . . . then,
is to counteract substantive openendedness with procedural strictness. This
provision demands on-the-record findings and specifies in some detail
certain factors that a judge must consider in making those findings.
Zedner v. United States, 547 U.S. 489, 508-09 (2006). The failure to comply with those
requirements cannot be fixed after the fact—in other words, a court may not retroactively
- 50 -

determine that the ends of justice support an exclusion of time. United States v. Tunnessen,
763 F.2d 74, 77 (2d Cir. 1985). Importantly, “[i]t is well established that a criminal
defendant has ‘no obligation to take affirmative steps to insure that [he will] be tried in a
timely manner.’ It is the court and the government that bear the affirmative obligation of
insuring the speedy prosecution of criminal charges.” United States v. Bert, 814 F.3d 70,
82 (2d Cir. 2016) (internal citation omitted). As such, a criminal defendant has no
responsibility for keeping track of the clock—that burden falls to the government and the
court.
2. The Magistrate Judge’s Interest of Justice Exclusion
The Magistrate Judge raised speedy trial concerns almost from the outset of the case,
related to the government’s failure to provide voluntary discovery in accordance with the
deadlines he set. At the October 31, 2018 status conference, he expressly contemplated
employing a “club” whereby the speedy trial clock would run until the government
produced voluntary discovery. And once the Superseding Indictment was returned, he
imposed that “club”—conditioning his interest of justice exclusion on the government
complying with the deadline he set for the production of voluntary discovery (i.e. July 31,
2019).
Because a further status conference was not scheduled by the Magistrate Judge—in
fact, he expressly indicated his aversion to proceeding in a “piecemeal” fashion with
various status conferences as had occurred after return of the initial Indictment—there was
no set mechanism by which it could be confirmed on the record during the time prior to
expiration of the speedy trial clock that, in fact, the government complied with its discovery
- 51 -

obligations and the clock was stopped. And the record is clear that concerns about the
adequacy of the discovery provided by the government were never raised by Defendants
until more than 70 days after the July 31, 2019 deadline. But Defendants are not the
keepers of the clock and they do not bear the responsibility for bringing themselves to trial
in a timely manner—it is the court and the government who must keep track of the clock.
During the 70-day time period after the deadline for production of voluntary discovery, the
government never took any steps to confirm on the record that it had complied with the
Magistrate Judge’s deadline and that the clock was stopped.
The Court acknowledges that there is some ambiguity with respect to the Magistrate
Judge’s speedy trial order. The May 29, 2019 written Scheduling Order confirmed that
time had been excluded from the speedy trial clock from May 29, 2019, through January
31, 2020, “for the reasons stated on the record herein,” and while it contained the July 31,
2019 deadline for voluntary discovery production, it made no reference to that condition
being imposed with respect to the interest of justice exclusion. Similarly, when initially
discussing the exclusion of time, the Magistrate Judge indicated that he was
“contemplating” imposing a condition linking the stopping of the clock to the production
of voluntary discovery, but when ultimately granting a speedy trial exclusion during the
May 29, 2019 status conference, the Magistrate Judge expressly excluded the time through
January 31, 2020, with no reference to the condition of compliance with the July 31, 2019
discovery deadline.
However, that language must be read in the context of the entire discussion at the
status conference—and indeed, in the context of the history of the government’s missed
- 52 -

deadlines—and the Magistrate Judge plainly intended to impose a “club” that if the
government failed to comply with the July 31, 2019 voluntary discovery deadline, the clock
would start to run. Moreover, when engaging in the colloquy with both counsel for Todd
Morgan and the government about the speedy trial exclusion, there was express reference
to the condition that discovery be produced by July 31, 2019. Thus, this Court concludes
that the effect of the Magistrate Judge’s order was that the failure to provide voluntary
discovery by July 31, 2019 would start the running of the clock. In other words, the
Magistrate Judge’s interest of justice exclusion on May 29, 2019, was conditioned on the
government producing the voluntary discovery in its possession by July 31, 2019.
The government contends that a conditional interest of justice exclusion based on
Rule 16 compliance cannot withstand legal scrutiny. (See, e.g., Dkt. 262 at 2). The
government’s after-the-fact attempt to attack the Magistrate Judge’s speedy trial exclusion
is wholly without merit. First, the government voiced no objection to the imposition of
this condition at the status conference on May 29, 2019, and in fact agreed that such a
requirement “makes sense.” Second, any interest of justice exclusion is subject to
procedural strictness, and thus, to the extent the Magistrate Judge’s condition suffered from
any legal infirmity, then the entire interest of justice exclusion would be ineffective. In
other words, one cannot retroactively attempt to fix any procedural irregularity with respect
to the interest of justice exclusion. Third, it was well within the Magistrate Judge’s
discretion to grant—or not grant—an interest of justice exclusion. Nothing required that
he grant the exclusion and stop the clock. Because he elected to grant the exclusion only
conditioned on the government complying with the deadline set for discovery, then that
- 53 -

requirement had to be met—if not, as the Magistrate Judge explained, the clock would start
to run.
Having concluded that the interest of justice exclusion depended on the
government’s production of voluntary discovery by July 31, 2019, the Court turns to
whether the government complied with that requirement—and there is no dispute that it
did not. The government failed to produce ESI from three of the eight computers seized
during execution of the May 2018 search warrant, and this failure resulted in hundreds of
thousands of electronic documents not being provided to Defendants by the deadline of
July 31, 2019. Further, the government failed to process Todd Morgan’s iPhone so that
the information could undergo a privilege review and ultimately be turned over to
Defendants. Plainly, these failures by the government violated the Magistrate Judge’s
requirement that voluntary discovery within the government’s possession as of May 29,
2019, be produced by July 31, 2019. Thus, the speedy trial clock began running as of
August 1, 2019, and it did not stop until November 15, 2019, when defendant Robert
Morgan filed a motion for an extension of time to file pretrial motions.25 (Dkt. 138). This

25
With respect to the length of the delay, Defendants contend that at least 106
unexcluded days have elapsed between August 1, 2019 and November 15, 2019. (Dkt. 217
at 22; see id. at 29; Dkt. 435 at 38). The Court agrees that 106 unexcluded days is the
correct calculation—in other words, 36 days in excess of the 70-day speedy trial clock,
meaning that the speedy trial clock expired on October 9, 2019.
Defendant Michael Tremiti takes the position that because the government has still
allegedly not complied with its Rule 16 discovery obligations, the speedy trial clock
continues to run (Dkt. 234 at 4) and defendant Todd Morgan argues that because the
government did not reprocess the ESI after entry of the DPP, the continuance entered on
May 29, 2019, was necessitated by lack of diligent preparation on the part of the
government, and therefore the clock started running as of May 29, 2019 (Dkt. 435 at 38-
39). The Court disagrees with both assessments. The clock was plainly stopped until
- 54 -

means that 106 days ran on the speedy trial clock, representing 36 days more than the 70
days allowed under the statute.
As referenced above, the Court has also concluded that certain aspects of the
government’s electronic discovery failed to comply with the DPP, although the Court is
not as convinced that these failures would have necessitated a running of the clock as of
August 1, 2019, based on the terms of the Magistrate Judge’s exclusion order. The
Magistrate Judge’s frustration with the government’s discovery conduct was plainly
directed at its missed deadlines for production of discovery, as opposed to any technical
issues related to that discovery. Moreover, at the appearance on May 29, 2019, counsel for
Todd Morgan expressly represented that the electronic discovery had been produced in the

August 1, 2019, to allow time for the government to produce discovery related to the
additional charges in the Superseding Indictment that had not been previously produced.
In other words, the factual predicate of defendant Todd Morgan’s position is not accurate.
Moreover, the filing of a pretrial motion falls within the automatic exclusion provision of
the Speedy Trial Act, see United States v. Tinklenberg, 563 U.S. 647, 650 (2011), and the
Court does not agree that it can be said that the motions filed by Defendants were filed as
a result of government misconduct (Dkt. 435 at 39). It is apparent that defendant Robert
Morgan’s counsel was preoccupied with other matters until at least late October 2019, and
therefore the motion to extend the pretrial motion deadline on November 15, 2019, was
due to defense counsel needing more time because they had not devoted the necessary time
to prepare pretrial motions up until that point. That motion for an extension had nothing
to do with the government’s failure to produce discovery from the three computers or Todd
Morgan iPhone—facts that were not known at the time the motion was filed.
Thus, the Court concludes that pursuant to the express terms of the Magistrate
Judge’s interest of justice exclusion order, the clock was stopped until August 1, 2019, at
which point it started to run because of the government’s failure to provide Rule 16
discovery within its possession by the July 31, 2019, deadline. The clock continued to run
until defendant Robert Morgan filed his motion for an extension on November 15, 2019,
and it remained automatically stopped thereafter because of various pending motions filed
by Defendants.
- 55 -

appropriate format in February 2019, after the DPP was filed. In other words, on May 29,
2019, when the Magistrate Judge put in place the condition of voluntary discovery to be
produced by July 31, 2019, he did this with an understanding that electronic discovery up
until that point had complied with the DPP. On the other hand, in the discussions with the
government about implementing this condition, the Magistrate Judge stated that the
condition would apply to the material “which is in the government’s possession, which is
being put together pursuant to a protocol.” (Dkt. 53 at 15).
In any event, the Court need not resolve that issue because of its findings with
respect to the government’s failure to produce the three computers and iPhone. In other
words, the clock started running on August 1, 2019, and therefore it is irrelevant to the
Court’s analysis concerning the expiration of the clock whether noncompliance with the
DPP also caused the clock to run. That said, the issue is relevant to the analysis of whether
a dismissal with or without prejudice is warranted, as discussed further below.
Finally, the Court does not agree that any alleged failure by the government to
comply with its continuing Rule 16 obligations after the July 31, 2019 deadline, could serve
as the basis for a running of the clock. The discussion at the May 28, 2019 conference was
clear that the Magistrate Judge’s condition applied to discovery presently within the
government’s possession, and it did not impact the government’s continuing discovery
obligations. (See id.). Again, this issue may be relevant to the analysis of whether any
dismissal should be with or without prejudice, but it does not impact the determination of
whether the clock expired.
- 56 -

C. The Dismissal is Without Prejudice
“Congress did not intend any particular type of dismissal to serve as the presumptive
remedy for a Speedy Trial Act violation.” United States v. Taylor, 487 U.S. 326, 334
(1988). The statute sets forth three factors that a court must consider when deciding
whether a speedy trial dismissal should be with prejudice: (1) the seriousness of the
offense; (2) the facts and circumstances of the case which led to the dismissal; and (3) the
impact of a reprosecution on the administration of the Act and the administration of justice.
18 U.S.C. § 3162(a)(2). “In addition to these statutory factors, the Supreme Court has
indicated that prejudice to the defendant should also be considered.” United States v.
Wilson, 11 F.3d 346, 352 (2d Cir. 1993) (citing Taylor, 487 U.S. at 334).
The Court has conducted a careful review of these factors. It is evident that the
government has demonstrated a disturbing inability to manage the massive discovery in
this case, and despite repeated admonitions from both this Court and the Magistrate Judge,
the government’s lackadaisical approach has manifested itself in repeated missed
deadlines. These missed deadlines led the Magistrate Judge to condition his interest of
justice exclusion on the government’s production of voluntary discovery by July 31, 2019.
The government failed to meet that deadline and bears full responsibility for allowing the
speedy trial clock to expire—not the least of reasons being that it “missed” and therefore
failed to process three of eight computers seized some 18 months earlier. On the other
hand, managing the discovery in this case is a tremendous undertaking and under the best
of circumstances, issues surrounding electronic discovery would inevitably arise requiring
a back-and-forth between the parties. Defendants are charged with offenses that are
- 57 -

extremely serious, and on balance the delay and any prejudice suffered by Defendants is
not significant enough to warrant a dismissal with prejudice. Accordingly, for the reasons
discussed in further detail below, the dismissal on statutory speedy trial grounds is without
prejudice.
1. Seriousness of the Offense
It is well-settled that “[w]here the crime charged is serious, the sanction of dismissal
with prejudice should ordinarily be imposed only for serious delay.” Bert, 814 F.3d at 79
(quoting United States v. Simmons, 786 F.2d 479, 485 (2d Cir. 1986)) (alteration in
original). Serious delay is measured both by facts and circumstances leading to a speedy
trial violation and the prejudice to a defendant. Id. at 79-80. “Thus, the fact that the
underlying offense is serious may be outweighed by the other factors, and the length of the
delay may contribute to such a counterweight.” Id. at 80.
The seriousness of the offense ordinarily examines the charge itself as opposed to
“the strength of the government’s case or the likely outcome of the proceedings.” Solnin,
81 F. Supp. 3d at 202 (citation omitted). “To do otherwise would inordinately complicate
and extend the analytical process.” United States v. Mancuso, 302 F. Supp. 2d 23, 26 n.1
(E.D.N.Y. 2004).
While any felony charge is serious, “there are degrees of seriousness.” United States
v. Montecalvo, 861 F. Supp. 2d 110, 115 (E.D.N.Y. 2012) (citation omitted). Moreover,
the lack of violence associated with a charged crime will “not necessarily render it non-
serious.” Id.
- 58 -

Defendants contend that the charges in this case do not rise to the level of significant
seriousness because they are non-violent in nature and there are no allegations in the
Superseding Indictment of any actual losses suffered by the banks. (See, e.g., Dkt. 217 at
22-23). The Court disagrees. The allegations in the Superseding Indictment depict a wide-
ranging and massive fraud scheme that, if true, wholly undermined the integrity of the
mortgages and funding obtained by Defendants. The charges are serious—extremely
serious—with significant penalties that Defendants would be facing if convicted.
Accordingly, the Court concludes that this factor weighs heavily against a dismissal with
prejudice.
2. Facts and Circumstances Leading to Dismissal
The Second Circuit has explained that this second statutory factor considers more
than just the reason for the delay in the case—rather, a district court must also take into
account “the length of the delay and whether any neglect that caused the delay at issue is
part of an ongoing pattern.” Bert, 814 F.3d at 79 n.5. This factor may “tip in favor of
dismissal with prejudice in situations where the delay is attributable to a ‘truly neglectful
attitude,’” and it does “not always require a finding of ‘evil motive.’” Id. at 80 (quoting
Taylor, 487 U.S. at 338). “A factually supported finding of a pattern of neglect, thus
showing a truly neglectful attitude, either on the part of the government or the court, may
alone suffice to tip the facts and circumstances factor in favor of dismissal with prejudice.”
Id. at 80-81 (internal quotation marks omitted). In addition, “it is firmly established that
the length of the delay, as ‘a measure of the seriousness of the speedy trial violation,’ is a
- 59 -

critical consideration in evaluating the facts and circumstances that led to the dismissal.”
Id. at 81 (quoting Taylor, 487 U.S. at 340).
With respect to the length of the delay, the Court has concluded that the speedy trial
clock expired by 36 days. Standing alone, this is not significant enough to constitute a
serious violation of the Speedy Trial Act warranting dismissal with prejudice. See United
States v. Hernandez, 863 F.2d 239, 244 (2d Cir. 1988) (explaining that 14 day delay
bordered on de minimis and stating that “short delays of the kind present here do not
become ‘serious’ violations of the Speedy Trial Act unless there is some resulting prejudice
to the defendant.”); United States v. Teman, No. 19 CR. 696 (PAE), 2019 WL 7041646, at
*9 (S.D.N.Y. Dec. 20, 2019) (“There is no bright-line test for when a delay is sufficiently
long to require dismissal with prejudice. But the 55-day delay here falls short of being of
such sheer length as to be a dominating consideration dictating that extreme outcome.”
(internal quotation marks omitted)); cf. Solnin, 81 F. Supp. 3d at 204 (finding unexcluded
delay of eight months was “not insubstantial” and could “[u]nder certain circumstances . .
. warrant dismissal of the relevant counts of an indictment with prejudice”).
With respect to a pattern of neglect, the Court first addresses the history of speedy
trial issues in this District. This District’s history with respect to speedy trial issues is not
stellar.26 More than three decades ago, the Second Circuit expressed chagrin over the

26
There are a number of parties who bear responsibility for the District’s speedy trial
history, and this Court does not view it as fair or appropriate to place all the blame on the
USAO-WDNY. However, when assessing this second statutory factor, the Court must
acknowledge this District’s speedy trial past and the Defendants in this case should not
bear that burden.
- 60 -

proliferation of speedy trial cases arising out of criminal prosecutions in the Western
District of New York. See United States v. Kiszewski, 877 F.2d 210, 215 (2d Cir. 1989)
(“It is disquieting that so many of our recent Speedy Trial Act opinions are in cases coming
from the Western District.”). A year later, in United States v. Giambrone, 920 F.2d 176
(2d Cir. 1990), the Second Circuit affirmed District Judge Richard J. Arcara’s dismissal of
an indictment with prejudice, noting that a “cavalier attitude toward speedy trial rights was
characteristic of the United States Attorney’s Office in the Western District of New York.”
Id. at 181-82. In its decision, the Second Circuit cited a string of decisions dating back to
1974 where both the appellate and trial courts in this District were “confronted with speedy
trial violations by the United States Attorney’s office in the Western District.” Id. at 182.
More recently, the Second Circuit has held “for the third time in two years that
criminal defendants’ rights to a speedy trial have been violated in the Western District of
New York.” United States v. Black, 918 F.3d 243, 248, 266 (2d Cir. 2019) (finding that
delay of almost six years in bringing case to trial violated defendants’ constitutional rights
to speedy trial); United States v. Tigano, 880 F.3d 602, 619 (2d Cir. 2018) (finding that
nearly seven year delay in bringing case to trial violated defendant’s constitutional right to
speedy trial); United States v. Pennick, 713 F. App’x 33, 35-36 (2d Cir. 2017) (over six
year pretrial delay violated defendant’s constitutional right to speedy trial).27

27
These cases did not involve violations of the Speedy Trial Act, but rather
constitutional speedy trial violations—in each case, involving defendants who were
detained in pretrial custody and where the delay in bringing the case to trial exceeded five
years.
- 61 -

Against that backdrop, the Court considers the facts and circumstances in this case.
First, it was the government’s own missed deadlines that caused the Magistrate Judge to
issue the conditional interest of justice exclusion. In other words, had it not been for the
government’s repeated failures to provide discovery in accordance with the deadlines set
by the Magistrate Judge, he would not have conditioned the speedy trial exclusion upon
production of voluntary discovery by July 31, 2019. Second, while this Court agrees with
the government that many of the discovery delays were “attributable to difficulties faced
by the Government in resolving challenging discovery issues in an immensely complex
case,” (Dkt. 262 at 32), that excuse cannot reasonably explain the failure to process and
produce three of the eight computers and Todd Morgan’s iPhone seized in May 2018. The
government has offered no justification for the failure to process those devices other than
the fact that they were just “missed.” While the ESI within the seized electronic devices is
voluminous, the actual number of seized devices is not substantial—and the Court can only
conclude that the government exhibited a truly neglectful approach to its organization of
the discovery that led to its failure to process these devices.28
The Court does not view the government’s management of the electronic discovery
as harshly. No question, there have been some significant missteps. The government did
not reprocess the electronic discovery once the DPP was agreed upon, nor did it arrange
for the same vendor to process the discovery utilizing the same software. Had these steps

28
The failure to process the Todd Morgan iPhone is slightly more understandable
because of the necessary division between the government’s filter team and investigation
team, but it likewise exhibits negligence on the part of the government.
- 62 -

occurred, the Court believes that many of the electronic discovery issues could have been
avoided. Moreover, there was no justification for the government to initially fail to provide
custodian information with the Laptop Production, and there have been inconsistencies in
the government’s handling of electronic discovery which—while perhaps not a technical
violation of the DPP—have created confusion and misunderstandings. However,
electronic discovery is challenging even under the best of circumstances. In other words,
the facts and circumstances cannot be appropriately evaluated without considering the
volume of discovery and the enormous efforts needed to manage an electronic production
of this nature.
Moreover, the Court also takes into account the failure of Defendants to raise any
issues with respect to electronic discovery until after the speedy trial clock had expired.
The record in this case establishes that no issues were raised by any defendant with respect
to discovery produced by the government between July 31, 2019, and October 30, 2019.
(See Dkt. 150 at 14). With respect to the defendants who were the subject of the initial
Indictment, including Todd Morgan, the record establishes that the government had not
received any communication regarding discovery issues since the completion of the
discovery in connection with that initial Indictment in February 2019, up until issues were
raised at the November 25, 2019 status conference. (Id.). In fact, there is no proof in the
record that either counsel for defendant Michael Tremiti or counsel for defendant Frank
Giacobbe has ever identified any specific issues to the government with respect to
electronic discovery.
- 63 -

During oral argument, counsel for defendant Robert Morgan suggested that it would
create a “serious appellate issue” for the Court, in assessing whether dismissal with
prejudice was appropriate, to consider the government’s claims that Defendants were
dilatory in raising any issues with the government concerning the adequacy of the
electronic discovery (and certainly never did so until more than 70 days after the July 31,
2019 deadline). The Court questions the merit of defense counsel’s position in that regard,
particularly since the Supreme Court has recognized that a defendant’s “culpable conduct”
and “responsibility for the failure to meet the timely trial schedule in the first instance” are
relevant factors when considering pursuant to § 3162(a)(2) the facts and circumstances
leading to a speedy trial violation. Taylor, 487 U.S. at 340.
But here, the Court does not consider Mr. Rothenberg’s statements at the appearance
on May 29, 2019, that electronic discovery had been produced in the appropriate form in
February 2019; or the failure of defense counsel to raise any concerns about the adequacy
of the electronic discovery until well after the 70-day window from the deadline set by the
Magistrate Judge for the production of voluntary discovery; or even the inconsistent
statements made by defense counsel to the Court throughout these proceedings that all
metadata issues had been resolved, when in fact they really had not been, to represent some
sort of culpable or dilatory conduct on the part of Defendants that should be held against
them when assessing the facts and circumstances leading to the speedy trial violation.
Rather, the Court views this information as relevant because it demonstrates the
complexities and difficulties associated with electronic discovery of this magnitude. It is
clear that as Defendants prepared for the hearing in this matter in an effort to marshal their
- 64 -

evidence of the government’s discovery failures, they discovered even more issues about
the integrity of the electronic production than they had initially understood, so that many
issues were raised at the evidentiary hearing that had never been previously brought to the
government’s attention. Again, this demonstrates the complexities of the issues. While
Defendants cannot be blamed for the evolution of their understanding of the issues
surrounding the electronic discovery, the Court must also assess the failures and missteps
in this case on the part of the government through the lens of the complications associated
with electronic discovery.
At the oral argument, defense counsel characterized the government’s conduct in
this case with respect to discovery as reactive versus proactive, and the Court agrees. But
the Court cannot conclude that the conduct has been undertaken in bad faith.29 The record
does not support any conclusion that the government’s conduct has been undertaken to gain
any sort of tactical advantage—indeed, the exact opposite has been the case—and there has
never been any suggestion that the government has any different metadata in its electronic
discovery platform than the defense.

29
Defendant Todd Morgan argues that dismissal with prejudice is appropriate, among
other reasons, because there is a “strong inference of government misconduct at the time
the search warrants were executed”—namely, “[a]lthough search warrant applications are
made ex parte, somehow the media, including numerous television stations, were given
advance notice of the search and were present at the time the warrants were being executed
and the search was being conducted.” (Dkt. 231 at ¶¶ 13-14). Not only is the record not
developed in this regard, but even if true, this alleged misconduct has nothing to do with
the speedy trial issues.
- 65 -

In sum, the Court views this second statutory factor as tipping in favor of a dismissal
with prejudice, but not weighing strongly in that direction. The Court reaches this
conclusion primarily in view of the government’s repeated missed deadlines resulting in
the conditional interest of justice exclusion, the government’s failure to produce by the July
31, 2019 deadline any material from several of the devices seized over a year earlier, and
the government’s failure to approach its electronic discovery obligations with the necessary
vigor required to manage ESI of this volume. However, given the fact that the clock
expired by only 36 days, the lack of bad faith by the government or delay intended to gain
a tactical advantage, and the natural challenges encountered by any party even under the
best of circumstances in managing electronic discovery of this volume, the Court concludes
that this factor tips in favor of a dismissal with prejudice, but it does not weigh heavily in
favor of such a dismissal.
Moreover, as noted above, the Court appreciates that Defendants have cited to
additional discovery failures on the part of the government—including its handling of
privileged information (that is the subject of a pending motion to dismiss certain counts),
its alleged failure to apply appropriate search terms when pulling data from the ESI in order
to comply with Rule 16, and its alleged failure to comply with its continuing discovery
obligations promptly. The record is not fully developed with respect to some of those
issues, but even if all unresolved issues in that regard were construed in favor of
Defendants, the Court would reach the same conclusion—namely, that consideration of the
facts and circumstances tips in favor of a dismissal with prejudice, but it does not weigh
heavily in favor of such a dismissal, and ultimately, a dismissal with prejudice on
- 66 -

consideration of all the necessary factors would not be appropriate. These additional
alleged discovery failures, like those discussed in detail above, appear largely to be the
result of the inherent difficulties in sorting, processing, and producing massive volumes of
ESI, and not of any bad faith or tactical considerations by the government.
3. The Impact of Reprosecution on the Administration of the Speedy

Trial Act and the Administration of Justice
Some of the same factors that are considered under the second statutory element are
also relevant to consideration of the third factor. As explained by the Second Circuit:
A pattern of disregard for speedy trial rights is also detrimental to the

administration of the criminal justice system since delays risk the loss of
important evidence, and repetitive prosecutions on the same charges cause
wasteful replication of effort. Such delays also harm both the interest of the
defendant and the interest of the public, for if the defendant is innocent, he
has an interest in early vindication; and if he is guilty, the public has an
interest in expeditious punishment for a variety of reasons, including the fact
that the closer in time the punishment is to the crime, the greater its
rehabilitative effect.
United States v. Giambrone, 920 F.2d 176, 181 (2d Cir. 1990). In considering this third
statutory factor, “district courts should identify and explain the administrative neglect that
caused the particular delay at issue, as well as consider any potential administrative
changes that might be warranted in light of that violation.” Bert, 814 F.3d at 83.
However, with respect to this factor, the Supreme Court has cautioned that while it
encourages “district courts to take seriously their responsibility to consider the ‘impact of
a reprosecution on the administration’ of justice and of the Act,” and that while a dismissal
with prejudice will always send a “stronger message” than dismissal without prejudice and
“is more likely to induce salutary changes in procedures,” dismissal with prejudice is not
- 67 -

required for every violation—and in fact, to interpret the Act in that manner would render
the other factors superfluous. Taylor, 487 U.S. at 342 (quoting 18 U.S.C. § 3162(a)(2)).
As explained by the Supreme Court:
Dismissal without prejudice is not a toothless sanction: it forces the

Government to obtain a new indictment if it decides to reprosecute, and it
exposes the prosecution to dismissal on statute of limitations grounds. Given
the burdens borne by the prosecution and the effect of delay on the
Government’s ability to meet those burdens, substantial delay well may make
reprosecution, even if permitted, unlikely.
Id. at 342.
As noted above, consideration of the second statutory factor tips in favor of a
dismissal with prejudice. However, the same cannot be said when considering this third
factor—and that is primarily because of the unique nature of the speedy trial order issued
in this case. No party has cited the Court to a case involving a conditional interest of justice
exclusion like the one that was entered in this case. By issuing a speedy trial exclusion like
the one that was issued here, the Magistrate Judge necessarily incorporated the
government’s Rule 16 compliance into any speedy trial considerations. Dismissal of an
indictment with prejudice for failure to comply with Rule 16 would be a drastic remedy.
Rule 16(d)(2) sets forth the remedies that a court may impose for failure to comply with
the rule’s requirements, and dismissal is not one of the remedies expressly articulated.
Certainly, when a government violates Rule 16, a district court “has broad discretion
in fashioning a remedy.” United States v. Walker, ___ F.3d ___, No. 18-1933, 2020 WL
5490829, at *8 (2d Cir. Sept. 11, 2020). In considering whether a district court
appropriately exercises its discretion in granting a particular remedy, if any, for a Rule 16
- 68 -

violation, the factors considered are “the reasons why disclosure was not made, the extent
of the prejudice, if any, to the opposing party, the feasibility of rectifying that prejudice by
a continuance, and any other relevant circumstances.” United States v. Lee, 834 F.3d 145,
159 (2d Cir. 2016) (quoting United States v. Pineros, 532 F.2d 868, 871 (2d Cir. 1976))
(finding that district court did not abuse discretion in admitting the defendant’s oral
statement that was not previously disclosed). To prove substantial prejudice under this
framework, a defendant “must demonstrate that the untimely disclosure of the [evidence]
adversely affected some aspect of his trial strategy.” Walker, 2020 WL 5490829, at *7
(quoting Lee, 834 F.3d at 158) (alteration in original). Where late disclosure occurs, it may
be appropriate to grant a continuance, see United States v. Monsanto Lopez, 798 F. App’x
688, 690-91 (2d Cir. 2020) (finding that even if Rule 16 violation occurred, district court
“was well within its broad discretion” to grant a continuance of the trial as opposed to
excluding the evidence), or in a particularly egregious case, a new trial may be warranted,
see United States v. Vinas, 910 F.3d 52, 54 (2d Cir. 2018) (district court erred in denying
defendant’s request for new trial where the government’s inaccurate pre-trial disclosure
under Rule 16(a)(1)(A) caused the defendant to forgo moving to suppress an inculpatory
statement introduced at trial that he made before receiving Miranda warnings).
However, it has been suggested that only where there has been a chronic refusal by
the government to turn over discovery material in bad faith, is it appropriate to consider
linking those failures to the running of the speedy trial clock. See United States v. Esquilin,
205 F.3d 1325, 2000 WL 232162, at *2 (2d Cir. 2000) (table decision) (rejecting argument
that speedy trial clock should have run while motion to dismiss was pending that was filed
- 69 -

after late production of Rule 16 discovery by government, where prosecutor had forgotten
about discovery material and material had been misplaced, but government did not
withhold information or cause delay in bad faith); United States v. Anderson, 902 F.2d
1105, 1109 (2d Cir. 1990) (rejecting argument that speedy trial time was not excluded
during pendency of motion brought because of government’s failure to comply with
discovery provisions of pretrial order, where government’s refusal to turn over discovery
was not chronic and in bad faith).
This is not a situation where the Court concludes that the government has acted in
bad faith or where disclosures have been made during trial (or even on the eve of trial).
The reason that the government’s discovery missteps are the subject of a motion to dismiss
the Superseding Indictment on speedy trial grounds is because of the unique interest of
justice exclusion issued in this case. Granted, the government voiced no objection to the
Magistrate Judge’s imposition of a “club”—nor did the government take affirmative steps
to follow up to ensure the status of the speedy trial clock. Moreover, there is no question
that this Court and the Magistrate Judge have both repeatedly expressed frustration with
the government’s discovery compliance at various points in time during this litigation.
Nonetheless, even with consideration of this District’s speedy trial history, the Court does
not believe that the impact of reprosecution on the administration of the Speedy Trial Act
and the administration of justice countenances in favor of a dismissal with prejudice under
the particular circumstances present here. Rather, the Court views consideration of this
factor as tipping against a dismissal with prejudice—not weighing heavily against such a
dismissal, but instead tipping against it. Cf. United States v. Reichberg, No. 1:16-CR-468-
- 70 -

GHW, 2018 WL 6599465, at *9 (S.D.N.Y. Dec. 14, 2018) (although “the Court has shared
some of Defendants’ concerns about the adequacy of the Government’s discovery and
other productions,” denying the motion to dismiss indictment on ground that the discovery
failures caused the speedy trial clock to run).
4. Prejudice to Defendants
“‘Although the absence of prejudice [to the defendant] is not dispositive,’ it can be
‘another consideration in favor of permitting reprosecution.’” Bert, 814 F.3d at 81
(citations omitted). Delay impacts this analysis, as the lengthier the delay “the greater the
presumptive or actual prejudice to the defendant, in terms of his ability to prepare for trial
or the restrictions on his liberty[.]” Taylor, 487 U.S. at 340. Moreover, “a district court is
entitled to construe a defendant’s delay in articulating his cognizance of the violation as
evidence that he did not suffer actual prejudice,” but this fact is “not fatal to the defendant’s
claim, and it is not the end of the court’s inquiry into prejudice.” Bert, 814 F.3d at 82.
The Second Circuit has identified two types of prejudice relevant to the inquiry: (1)
trial prejudice which impacts a “defendant’s ability to mount a defense at trial,” and (2)
non-trial prejudice. Id. Non-trial prejudice has been described by the Supreme Court as
follows:
Inordinate delay between public charge and trial, wholly aside from possible
prejudice to a defense on the merits, may seriously interfere with the
defendant’s liberty, whether he is free on bail or not, and may disrupt his
employment, drain his financial resources, curtail his associations, subject
him to public obloquy, and create anxiety in him, his family and his friends.
Taylor, 487 U.S. at 340-41 (citations, internal quotation marks, and original alterations
omitted).
- 71 -

Defendants have not seriously mounted an argument that the delay in this case has
led to trial prejudice. In November 2019, the Court scheduled the trial to commence in
January 2021, with no request or argument by any defendant that the trial should be held
sooner. Rather, reflective of the complexities at play in this case, Defendants have
repeatedly requested adjournments of the pretrial motion deadlines—indeed, requesting a
six month adjournment before they apparently became aware of any discovery issues in
this case (or at least the extent of those issues) and even now, that deadline has been
extended at Defendants’ request to October 31, 2020. (Dkt. 406; Dkt. 407). At oral
argument on September 10, 2020, defense counsel cited to the recent death of Larry Hill
as supporting an argument for lost evidence and trial prejudice, but there is nothing in the
record suggesting that Mr. Hill would have provided evidence helpful to the defense—and
in any event, his death occurred before the scheduled trial date, which again, was set with
the consent of Defendants. Thus, the Court concludes that there is no legitimate finding of
trial prejudice here.
In support of their speedy trial motions, Defendants largely focus on the non-trial
prejudice. Defendant Robert Morgan argues that he, his family, and affiliates have “faced
severe personal, business, and reputational harm throughout this proceeding, since the
beginning of the government’s highly-publicized investigation,” and that the government’s
actions have “created a cloud of uncertainty in the marketplace, which has severely
restricted Mr. Morgan’s ability to effectuate transactions involving Morgan-affiliated
properties . . . in order to preserve the value of those properties and ensure they remain
under high-quality management, to the benefit of residents and the community at large.”
- 72 -

(Dkt. 217 at 31). Defendant Robert Morgan also focuses on the prejudice that he suffers
because of his health challenges. (Id. at 32 (“Mr. Morgan is a paraplegic grandfather,
husband, and father with serious and sometimes life-threatening health complications. Not
only does the stress of a future prosecution impact[] his health, but he also has greater
reason to feel anxiety and concern about the possibility of incarceration, since such
limitations on his freedom would impact the medical options available to him.”)).
Defendant Todd Morgan contends that he has been prejudiced by the delay by
suffering “overwhelming anxiety and stress” and damage to his reputation which has
negatively impacted “all of Todd Morgan’s business relationships.” (Dkt. 231 at ¶¶ 52-
55). Moreover, although no defendant is detained in pretrial custody, defendant Todd
Morgan argues that the restrictions on his liberty through pretrial supervision have
prejudiced him. (Id. at ¶ 56).30 In addition, defendant Todd Morgan cites to the substantial
costs incurred in connection with the discovery issues. (Id. at ¶ 57; see Dkt. 435 at 55
(defendant Todd Morgan stating: “Hosting fees for Todd Morgan alone, as well as the
additional costs of D4’s analysis of the Government’s productions and its preparation and
participation in this hearing, run well into the six figures.”)).
Defendant Michael Tremiti argues that in addition to the physical, mental, and
emotional strain associated with being a target of this prosecution, he has become “virtually
unemployable” since being charged in this case and that unlike other defendants, he does
not have significant assets to finance his defense of this litigation. (Dkt. 234 at 5).

30
Defendant Todd Morgan is subject to pretrial supervision, which includes
restrictions on his travel and required the posting of a $25,000 signature bond. (Dkt. 10).
- 73 -

Defendant Frank Giacobbe contends that his ability to earn a living and reputation
have similarly suffered since being named as a defendant in this case. (Dkt. 237 at ¶ 27).
The problem with much of Defendants’ cited prejudice is that it largely relates to
being prosecuted in this criminal case—as opposed to prejudice directly related to the fact
that the speedy trial clock expired when the government failed to produce discovery by the
July 31, 2019 deadline. Certainly, any delay can contribute to or exacerbate the prejudice
identified by Defendants as a result of being prosecuted in this case—but in the end, it was
36 days that expired from the speedy trial clock. Moreover, the most blatant failure to
comply with the Magistrate Judge’s discovery deadline occurred with the failure to produce
the Laptop Production—which was identified in November 2019, and which was produced
in December 2019. In other words, the Court would be hard-pressed to conclude that this
delayed production resulted in any prejudice to Defendants, especially when it appears
fairly evident that their counsel had not meaningfully reviewed the discovery that had
already been produced. Similarly, while the Court does not doubt that an enormous amount
of time and money has gone into managing the electronic discovery and then preparing for
the evidentiary hearing necessitated by the motions to dismiss, electronic discovery in a
case of this magnitude would inevitably cost time and money, and as noted above, while
the Court concluded that the government failed to comply with the DPP in some respects,
it did not agree with Defendants that the errors were as egregious as they claimed.
Thus, the Court concludes that the prejudice to Defendants, which is of the non-trial
nature, is not significant enough to warrant a dismissal with prejudice. The Court views
this factor as weighing against a dismissal with prejudice—not weighing heavily against
- 74 -

such a dismissal, but nonetheless weighing against it (and not just tipping in the direction
of a dismissal without prejudice).
In the final analysis, on balance and considering all of the factors as discussed above,
the Court concludes that a dismissal without prejudice is the appropriate remedy for the
violation of the Speedy Trial Act. To be clear, the government has allowed this question
of dismissal with or without prejudice to be a closer question than it should be—but in the
end, it is not a close question.
D. Defendants’ Constitutional Speedy Trial Rights Have Not Been Violated
“The Sixth Amendment guarantees that, in all criminal prosecutions, the accused
shall enjoy the right to a speedy trial.” Doggett v. United States, 505 U.S. 647, 651 (1992)
(internal quotation marks and original alterations omitted). The Supreme Court has set
forth four factors for consideration in deciding whether the Sixth Amendment has been
violated by a pre-trial delay: “whether delay before trial was uncommonly long, whether
the government or the criminal defendant is more to blame for that delay, whether, in due
course, the defendant asserted his right to a speedy trial, and whether he suffered prejudice
as the delay’s result.” Id. (citing Barker v. Wingo, 407 U.S. 514, 530 (1972)). “These
factors ‘must be considered together with any other circumstances as may be relevant’ and
‘have no talismanic qualities.’” United States v. Cain, 671 F.3d 271, 296 (2d Cir. 2012)
(quoting Barker, 407 U.S. at 533). In comparison to a statutory speedy trial violation, if a
constitutional violation is established, dismissal of the charge with prejudice is the
mandatory remedy. See Strunk v. United States, 412 U.S. 434, 439-40 (1973); United
- 75 -

States v. Pennick, 713 F. App’x 33, 35 (2d Cir. 2017) (“When the [constitutional speedy
trial] right is violated, the only remedy is dismissal of the charges with prejudice.”).
1. First Barker Factor—The Delay
“The first of [the Barker factors] is actually a double enquiry. Simply to

trigger a speedy trial analysis, an accused must allege that the interval
between accusation and trial has crossed the threshold dividing ordinary from
‘presumptively prejudicial’ delay, since, by definition, he cannot complain
that the government has denied him a ‘speedy’ trial if it has, in fact,
prosecuted his case with customary promptness.”
Doggett, 505 U.S. at 651-52 (quoting Barker, 407 U.S. at 530-31). “It comes as no surprise
that courts have been unable to define ‘presumptively prejudicial.’” United States v.
Vassell, 970 F.2d 1162, 1164 (2d Cir. 1992) (noting that one commentator had discerned
“a general consensus that a delay of over eight months meets this standard, while a delay
of less than five months does not.”); see also Doggett, 505 U.S. at 652 & n.1 (noting that
delay approaching one year is generally sufficient to warrant further inquiry); McCray v.
Capra, No. 9:15-cv-01129-JKS, 2017 WL 3836054, at *10 (N.D.N.Y. Aug. 31, 2017)
(“Here, [the defendant]’s trial began roughly 7 months after his initial arrest. [The
defendant] thus fails to show that the delay is ‘presumptively prejudicial.’”); United States
v. Bender, No. 02 CR MISC 40 JCF, 2003 WL 282184, at *2 (S.D.N.Y. Feb. 7, 2003)
(finding that a delay of seven months “falls well short of being presumptively prejudicial”).
Nevertheless, even if a delay is presumptively prejudicial, thus triggering the speedy trial
analysis, this does not mean that a violation occurred where evaluations of all the
circumstances justify the delay. See, e.g., United States v. Ghailani, 733 F.3d 29, 46-48
(2d Cir. 2013) (five-year delay); United States v. Blanco, 861 F.2d 773, 777-78 (2d Cir.
- 76 -

1988) (10-year delay); Rayborn v. Scully, 858 F.2d 84, 93-94 (2d Cir. 1988) (more than
seven years).
Here, the Court easily concludes that the delay faced by defendants Todd Morgan
and Frank Giacobbe is presumptively prejudicial. They were originally indicted in May
2018, they filed motions to dismiss on speedy trial grounds over 20 months later in
February 2019, and it has now been over two years since they were originally indicted. By
contrast, it is a closer question whether the delay faced by defendants Robert Morgan and
Michael Tremiti is presumptively prejudicial. They were originally indicted in May 2019,
they filed their motions to dismiss on speedy trial grounds just over eight months later, and
it has now been over a year since they were indicted.
Nonetheless, for purposes of this Decision and Order the Court assumes that the
delay faced by all Defendants has been presumptively prejudicial. However, the delay has
not been uncommonly long given the complexities of this case—and in fact, the trial date
of January 2021, was agreed to by all parties and that date has not yet occurred. “The
length of the delay here was less extensive than that tolerated in other cases.” United States
v. Vasquez, 918 F.2d 329, 338 (2d Cir. 1990) (finding delay of 26 months did not violate
Sixth Amendment right to speedy trial). This case is very complex, as presumably even
Defendants would concede. (See Transcript of Proceedings held on 6/5/2019, SEC v.
Morgan, Case 1:19-cv-00661-EAW, Dkt. 27 at 44-45 (W.D.N.Y. June 5, 2019) (transcript
of oral argument before the undersigned, wherein counsel for defendant Robert Morgan
explained: “I think everyone would agree, it’s [a] 114 count indictment involving 12 or 13
years of history. I don’t regularly practice in this district, I would venture to guess it’s one
- 77 -

of the largest cases ever brought in this district. It’s large anywhere.”)). Given the
complexity of this case when measured against the length of any delay, the Court finds that
this factor does not weigh against the government. Accordingly, with respect to this first
factor, the Court considers it to trigger the speedy trial analysis, but it does not consider it
to weigh in favor of dismissal.
2. Second Barker Factor—Reason for Delay
With respect to the second factor:
Although no single Barker factor is a necessary or sufficient condition to the

finding of a deprivation of the right of speedy trial, the second factor—reason
for delay—is often critical. The Sixth Amendment is rarely violated by delay
attributable entirely to the defendant, or by delay that serves some legitimate
government purpose.
United States v. Moreno, 789 F.3d 72, 79 (2d Cir. 2015) (citation and internal quotation
marks omitted). There are three types of Sixth Amendment speedy trial delay: deliberate,
neutral and valid. See Barker, 407 U.S. at 531. Deliberate delay, which is delay intended
to confer an advantage over a defendant, weighs most heavily against the government. Id.
Neutral delay, resulting from government negligence and overcrowded court dockets, is
less weighty. Id.; see Vasquez, 918 F.2d at 338 (no Sixth Amendment violation despite
apparent government negligence in failing to expedite a mental competency examination).
But see Flowers v. Warden, Conn. Corr. Inst., 853 F.2d 131, 134 (2d Cir. 1988) (a 17-
month delay due to government dysfunction “might well merit dismissal” in case where
greater prejudice to a defendant or “some bad faith by the prosecution” is established).
Delay is considered “valid” delay if it is reasonable pretrial delay, see, e.g., Vassell, 970
F.2d at 1165 (seven-month delay in complex case to negotiate plea and cooperation
- 78 -

agreement with co-defendant); delay caused by proceedings in another jurisdiction, see,
e.g., United States v. Jones, 91 F.3d 5, 8-9 (2d Cir. 1996); or delay attributable to the
defendant, see, e.g., Davis v. Kelly, 316 F.3d 125, 127 (2d Cir. 2003) (57-month delay
caused by “repeated replacements of the defendant’s attorney at his request” (citation
omitted)).
Here, viewing the delay from the perspective of the earliest indicted Defendants,
there has been delay from May 22, 2018, through October 8, 2020—less than 29 months.
The delay is less for defendants Robert Morgan and Michael Tremiti, who were indicted
less than 17 months ago.
The delay from March 2020 through July 2020 was necessary due to the COVID-
19 pandemic, as the evidentiary hearing was originally scheduled to commence in March
2020, but was postponed with all parties’ consent to July 2020 because of the pandemic
and the health and safety risks associated with it. Accordingly, four months is plainly
“valid” delay.
None of the delay can be considered deliberate delay, as the government’s missteps
are attributable to its negligence—not for the purpose of gaining a tactical advantage or
prejudicing Defendants. In fact, the record establishes that the discovery maintained in the
government’s document production platform was the same as what was produced to
Defendants, so it is not as though the government was intentionally hiding relevant
information in an effort to obtain a tactical advantage. Moreover, with respect to the 24-
25 months of non-COVID delay for defendants Todd Morgan and Frank Giacobbe, and the
12-13 months of non-COVID delay for defendants Robert Morgan and Michael Tremiti,
- 79 -

some of it is attributable to time needed by Defendants to prepare their motions directed to
the speedy trial issues (e.g., defendant Robert Morgan indicated at the status conference on
November 25, 2019, that a motion would be forthcoming, and he filed it over two months
later on January 31, 2020); some of it is attributable to time that the motions were under
consideration by the Court (e.g., the Court took the pending motions under advisement
after oral argument on September 10, 2020); and plainly some of it was attributable to the
time needed for the government to produce the voluminous discovery in this case and for
Defendants to review it.
However, even if all of the remaining time (after exclusion of the four months due
to the COVID-19 pandemic) was considered neutral delay attributable to government
negligence, while not insignificant, it does not rise to the length of delay often considered
necessary to justify a constitutional speedy trial dismissal. Nonetheless, it warrants
consideration of the other factors.
3. Third Barker Factor—Defendants’ Assertion of Rights
Whether a defendant is serious about wanting a speedy trial is the third Barker
factor. See Barker, 407 U.S. at 530. A “lack of timeliness, vigor or frequency” in asserting
the right does not waive the claim, but it undercuts it. See Rayborn v. Scully, 858 F.2d 84,
93 (2d Cir. 1988); Garcia Montalvo v. United States, 862 F.2d 425, 426 (2d Cir. 1988) (no
violation where defendant raised issue six years after trial). But see Doggett, 505 U.S. at
652-54 (post-arrest assertion timely more than eight years after indictment filed because
defendant had been unaware of indictment).
- 80 -

The third Barker factor—Defendants’ assertion of their speedy trial rights—favors
the government. Defendants did not press any speedy trial issues until November 2019,
after the bulk of the delay occasioned by the discovery issues had elapsed. See United
States v. Shine, No. 17-CV-28-FPG, 2018 WL 3737877, at *3 (W.D.N.Y. Aug. 7, 2018)
(finding third Barker factor favored the government where the defendant “did not assert
his right to a speedy trial until he filed his first speedy trial motion[.]”). Indeed, the only
party who appeared legitimately concerned about speedy trial issues prior to November
2019, was Magistrate Judge Schroeder. Moreover, when Defendants did assert speedy trial
rights in November 2019, it was linked to their statutory speedy trial claim that the clock
had expired—Defendants have never voiced a desire to proceed to trial more quickly than
the Court scheduled. At this stage, Defendants still have not filed pretrial motions and the
Court rejects any suggestion that those motions could not be filed because of outstanding
discovery issues—in fact, some of the motions that defense counsel have identified that
they intend to file have nothing to do with discovery. As a result, consideration of this
third factor does not weigh in favor of dismissal.
4. Fourth Barker Factor—Prejudice
With respect to the fourth Barker factor, “[e]xcessive pretrial delay can inflict three
kinds of cognizable prejudice: (i) oppressive pretrial incarceration, (ii) anxiety and concern
of the accused, and (iii) the possibility that the defense will be impaired.” Moreno, 789
F.3d at 81 (citation and internal quotation marks omitted). The last of these concerns is
“the most serious,” because “the inability of a defendant adequately to prepare his case
skews the fairness of the entire system.” Id. (citation and internal quotation marks omitted).
- 81 -

However, the presumption of prejudice inherent in a sufficiently lengthy delay also
may be enough to prevail on a Sixth Amendment claim even absent “proof of particularized
prejudice.” Doggett, 505 U.S. at 655, 657-58 (right to speedy trial violated by eight-and-
one-half-year delay between indictment and arrest). Prejudice that is merely conjectural
does not suffice. See Moreno, 789 F.3d at 81 (possibility that defendant would no longer
recall certain phone conversations was belied by conversations having been recorded and
“thus fully preserved[,]” and failure to recall context “may [also] be said of the
government’s witnesses”); see also Barker, 407 U.S. at 521 (fading memories may “work
to the accused’s advantage”).
Here, when considered in the context of alleged constitutional violations,
Defendants’ claims of prejudice are unpersuasive and do not weigh in favor of finding a
constitutional speedy trial violation. Certainly, Defendants have faced the stress and
anxiety normally attendant to any criminal prosecution, but there is no evidence that their
defense will be impaired, nor have they faced oppressive pretrial incarceration. Thus, the
Court concludes, based on its consideration of all the Barker factors, that a constitutional
speedy trial violation has not occurred here.
III. CONCLUSION
For the foregoing reasons, the Superseding Indictment is dismissed without
prejudice because the speedy trial clock expired, but to the extent that Defendants argue
the dismissal should be with prejudice or their constitutional speedy trial rights have been
violated, the Court disagrees. Therefore, the Court grants in part without prejudice and
denies in part defendant Robert Morgan’s motion to dismiss (Dkt. 216), defendant Todd
- 82 -

Morgan’s motion to dismiss (Dkt. 231), defendant Michael Tremiti’s motion to dismiss
(Dkt. 234), and defendant Frank Giacobbe’s motion to dismiss (Dkt. 237); and the Court
grants the motions of defendant Frank Giacobbe to join in the arguments of his co-
defendants with respect to these pending motions (Dkt. 248; Dkt. 455). Furthermore,
defendant Robert Morgan’s motion to dismiss Counts 1, 38, 39, 61, and 62 of the
Superseding Indictment (Dkt. 322) and motion to compel (Dkt. 439) are denied as moot.
The Clerk of Court is directed to dismiss this case as to defendants Robert Morgan, Todd
Morgan, Michael Tremiti, and Frank Giacobbe, without prejudice.
SO ORDERED.
ELIZABETH A. WOLFORD
United States District Judge
Dated: October 8, 2020

Rochester, New York
- 83 -

Morgan Fed CRT Ruling (128491)

Uploaded by

Copyright:

Available Formats

Morgan Fed CRT Ruling (128491)

Uploaded by

Document Information

Original Description:

Original Title

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

Morgan Fed CRT Ruling (128491)

Uploaded by

Copyright:

Available Formats

Case 1:18-cr-00108-EAW-HKS Document 468 Filed 10/08/20 Page 1 of 83

UNITED STATES DISTRICT COURT

UNITED STATES OF AMERICA,

v. DECISION AND ORDER

ROBERT MORGAN, FRANK GIACOBBE, 1:18-CR-00108 EAW

(hereinafter collectively “Defendants”) stand accused by way of a 114-count Superseding

a decade to defraud financial institutions and government-sponsored enterprises Freddie

properties managed by Morgan Management, LLC (“Morgan Management”), and owned

by various limited liability companies controlled by defendant Robert Morgan, as well as

a lack of experience or expertise, an apathetic approach to the prosecution of this case, or

Ultimately, the government’s failures to meet court-imposed deadlines prompted

government’s production of discovery by a certain deadline—and the government blew

clock has expired, and the Superseding Indictment must be dismissed.

However, after careful consideration, including a detailed analysis of the adequacy

is dismissed without prejudice.

A. Initial Indictment and Request to Extend Voluntary Discovery Deadline

at 86-97). Additional electronic information was obtained from Frontier Cybercenter,

Dkt. 157-1 at 91-92, 96).

A status conference was conducted before Magistrate Judge Schroeder on August

government putting in place a different document management system to handle the

sufficient to complete voluntary discovery. (Id. at 19).

At the time, Magistrate Judge Schroeder raised speedy trial concerns:

MAGISTRATE JUDGE: But do you now realize the conundrum the

AUSA PENROSE: Yes, Judge.

B. October 31, 2018 Status Conference and Document Production Protocol

A status conference was conducted before Magistrate Judge Schroeder on October

Judge’s deadline of October 12, 2018. (Id. at 6-7).

MAGISTRATE JUDGE: Well, that would be a pretty severe sanction.

document production protocol for electronic discovery (id. at 28-30).

entitled “Data Delivery Standards” constituting the document production protocol,

hereinafter referred to as “the DPP”)).4

explained that it could make the previously-produced discovery immediately available to

discovery, and the following exchange occurred:

AUSA PENROSE: Understood.

MAGISTRATE JUDGE: That which is in the government’s possession,

(Id. at 14-15 (emphasis added)).

format, my recollection is sometime in February, and it is a monumental task to go through

speedy trial clock, as follows:

MAGISTRATE JUDGE: Now, as to the Defendant Giacobbe, Mr.

MR. GREENMAN: Yes, your Honor.

MAGISTRATE JUDGE: Mr. Rothenberg, on behalf of the defendant,

MR. ROTHENBERG: Yes, your Honor, but subject to your Honor’s

MAGISTRATE JUDGE: And, Mr. Thompson, as to the Defendant Tremiti,

MR. THOMPSON: Yes, your Honor.

MR. COHEN: Understood, your Honor. Thank you.

MAGISTRATE JUDGE: All right. Counsel for the government, is it the

AUSA FABIAN: Yes, your Honor.

MAGISTRATE JUDGE: Based on the representations made by counsel for

(Id. at 53 at 26-29 (emphasis added)).

2019 deadline. (Id. at 2).

D. Defendant Robert Morgan’s November 2019 Motion to Extend

discovery to defendant Robert Morgan on August 8, 2019,6 described as “massive” and

Gibson Dunn servers. (Id.).

(See Dkt. 262-1 at ¶¶ 25-27).

Also included in the government’s response to defendant Robert Morgan’s motion

laptops are duplicative of items already produced.” (Id. at 5-6).8

Court as to why he did not raise these issues earlier, he responded:

be produced by July 31, 2019. (Id. at 16-19).