United States District Court, W.D. North Carolina, Charlotte Division
Cogburn Jr. United States District Judge
MATTER is before the court on review of non-dispositive
Orders issued by Honorable David S. Cayer, United States
Magistrate Judge, in this matter. Defendants have filed
Objections (#s 134 and 135) to such Order and the government
has filed timely Responses (#s139 and 140).
district court has authority to assign non-dispositive
pretrial matters pending before the court to a magistrate
judge to “hear and determine.” 28 U.S.C. §
636(b)(1)(A). When reviewing an objection to a magistrate
judge's order on a non-dispositive matter, the district
court must set aside or modify any portion of that order
which is clearly erroneous or contrary to law. Fed.R.Crim.P.
59(a). To show that a magistrate judge's order is
contrary to law, the objecting party must show that the
magistrate judge failed to apply or misapplied statutes, case
law, or procedural rules. See Catskill Dev. LLC v. Park
Place Entm't Corp., 206 F.R.D. 78, 86
court has carefully reviewed the Orders as well as the
objection, and has determined that the Orders of the
magistrate judge are fully consistent with and supported by
current law. Based on such determination, the court will
overrule the Objections and fully affirm the Order for the
reasons discussed in the government's Responses, and for
the reasons briefly discussed herein.
Order denying joint Motion to Compel
Judge Cayer's Order (#122) denying defendants' joint
Motion to Compel (#s 98 and 99), defendants sought documents
and information detailing negotiations the government had
with Swisher concerning the Deferred Prosecution Agreement
(hereinafter “DPA”), the related Bill of
Information, any facts in the pending Indictment, any
proffers made by Swisher, and any agent's rough notes.
Judge Cayer denied such request.
noting the correct standard of materiality under Rule 16,
Fed.R.Crim.P., and correctly identifying defendants'
burden on such motion, Judge Cayer's concluded that
defendants' “assertion that ‘Swisher may not
have always been in agreement with the Government' does
not suffice” (Order (#122) at 4) and did not satisfy
defendants' burden under Rule 16. Such determination is
not clearly erroneous.
Cayer also properly concluded that this court's Standing
Discovery Order provides that the government need not retain
agents' rough notes where those notes are incorporated
into a formal report. Further, Judge Cayer accurately
recognized that the government stated that it has and will
continue to provide defendants with all materials falling
within Brady and Giglio, and properly
concluded that mere speculation that more material might
exist does not satisfy the defendant's burden in moving
to compel. More particularly, Judge Cayer correctly found
that communications between the government and Swisher, years
after the criminal conduct alleged herein occurred, were not
discoverable as defendants had not met their burden of
showing how such materials would be material to preparing a
defense. United States v. Caro, 597 F.3d 608, 621-22
(4th Cir. 2010).
defendants' reliance on United States v. Stein,
488 F.Supp.2d 350 (S.D.N.Y. 2007) is misplaced. First,
Stein, as a district court decision from another
circuit, is not controlling. Second, the situation in
Stein is dissimilar to this case inasmuch as the
party with the DPA there did not, as has Swisher in this
case, cooperated in the government's investigation.
Indeed, it is alleged herein that Swisher sponsored an
internal investigation upon learning of the alleged
accounting fraud by these defendants and took steps to inform
the investing public of what it determined was likely fraud.
Thus, Judge Cayer was under no obligation to follow the
decision in Stein. Third, the court can find no
support for defendants' argument that it was error for
the magistrate judge not to engage in an inquiry as to
whether the documents sought were in the government's
control. Clearly, defendants' inability to show
materiality at the first step of the analysis mooted the need
for any inquiry into control.
Objections to this determination are overruled, the Order of
Judge Cayer is fully affirmed, and the court adopts such
Order as its own.
Order denying Defendant Viard's ...