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United States v. McConnell

United States District Court, D. Minnesota

January 11, 2017

United States of America, Plaintiff,
v.
Lachlan Scott McConnell (6), Defendant.

          Linda L. Marks, Roger J. Gural, and Jacqueline Blaesi-Freed, U.S. Department of Justice, Consumer Protection Branch, on behalf of Plaintiff

          Ryan M. Pacyga and Marie Celine Pacyga, Pacyga and Associates, PA, on behalf of Defendant

          MEMORANDUM OPINION AND ORDER

          SUSAN RICHARD NELSON United States District Court Judge

         This matter is before the undersigned United States District Judge on Defendant Lachlan Scott McConnell's Objections [Doc. No. 745] to Magistrate Judge Franklin L. Noel's December 21, 2016 Amended Report and Recommendation (“R&R”) [Doc. No. 734] and December 13, 2016 Report and Recommendation [Doc. No. 709].[1] In the R&R, Magistrate Judge Noel denied Defendant's Motion to Dismiss the Indictment or in the Alternative for Severance [Doc. No. 673]. For the reasons set forth herein, Defendant's Objections are overruled, the R&R is adopted, and Defendant's motion is denied.

         I. BACKGROUND

         In November 2013, the Government charged McConnell and ten other Defendants in an indictment alleging multiple counts of conspiracy, wire fraud, and unlawful distribution and dispensing of controlled substances. (Indictment [Doc. No. 5].) As recounted in the R&R, in April 2016, McConnell was arrested in the Philippines. (R&R at 1.) On June 1, 2016, McConnell was brought to the United States. (Id.) He appeared before this Court on June 2, 2016 and was subsequently released to a halfway house at that time [Doc. No. 539].

         In one of McConnell's pretrial motions, he sought to compel the production of the following items of his property that had been held by the Government: (1) a Dell laptop computer; (2) an ASUS laptop computer; (3) two Seagate portable computer drives; (4) a Western Digital hard drive labeled “defective”; (4) a cell phone; and (5) a black flash drive. (Def.'s Mot. to Compel Disc. of Def.'s Property [Doc. No. 586].) The magistrate judge ordered the production of this material by December 6, 2016. (Order of 11/23/16 at 5 [Doc. No. 668]; Hrg. Tr. at 334 [Doc. No. 644].)

         In November 2016, the Government produced Defendant's cell phone, a DVD containing the report and content of the phone, and a password to access the DVD. (Pacyga Aff. ¶ 5 [Doc. No. 674] (filed under seal). Counsel for Defendant asserts that the DVD contains approximately 540 megabytes of information. (Id.) The Government represents that on November 30, 2016, it made available to Defendant's counsel an imaged copy of the ASUS laptop. (Gov't's Opp'n to Def.'s Mot. to Compel at 2 [Doc. No. 682].) On December 6, 2016, the Government provided to defense counsel a hard drive containing forensic images of the Dell laptop and the two Seagate computer drives. (Id. at 3.) However, certain files, which were believed to be classified, were not provided to defense counsel. (Id.) Also on December 6, the Government delivered to defense counsel a hard drive containing mirror images of the Dell laptop and the two Seagate computer drives. (Id.) Defense counsel maintains that the hard drive contains at least six million documents. (Pacyga Aff. ¶ 2 [Doc. No. 674]) (filed under seal).

         On December 7, 2016, McConnell filed the underlying motion for dismissal or severance, emphasizing the volume of the recently-produced discovery, “all of which the [G]overnment has had exclusive control over since at least June 1, 2016.” (Def.'s Mot. at 1.) Defendant further contended that the Government had failed to produce the black flash drive and the defective Western Digital hard drive, as required by the Court. (Id.) Citing Fed. R. Crim. P. 16(d), McConnell argued that he had been prejudiced in his trial preparation due to the volume of discovery produced so close to trial. (Id. at 2.) Defendant also requested that the Court sanction the Government for its failure to comply with the Court's discovery order which required the production of discovery by December 6. (Id.) As to the form of sanction, McConnell requested the dismissal of the charges against him in the Indictment or severance of his case from the trial of his codefendants. (Id.)

         The Government represents that on December 8, 2016, it provided to defense counsel the defective Western Digital hard drive, which McConnell acknowledged was inoperable when in his possession, and the black flash drive, which McConnell was not allowed to retain in the halfway house. (Gov't's Opp'n at 3.)

         In the R&R, Magistrate Judge Noel determined that the Government had substantially complied with its discovery obligations under Rule 16. (R&R at 2.) As to the two-day discovery delay in producing the inoperable hard drive and the black flash drive, the magistrate judge found that under these circumstances, such a delay did not warrant dismissal. (Id.) The magistrate judge did not express an opinion on whether any delay occasioned by the possible need for proceedings under the Classified Information Procedures Act (“CIPA”) might independently warrant severance of McConnell's trial. (Id. at 3, n.1.)

         In his Objections, McConnell argues that the magistrate judge erred in: (1) failing to make findings concerning the impact of the Government's delay and the volume of discovery on the defense; and (2) recommending the denial of his motion for dismissal or severance for government misconduct. (Mem. Supp. Obj. at 2-5 [Doc. No. 745-1].)

         II. DISCUSSION

         As McConnell himself observed in his underlying motion, “When a court sanctions the government in a criminal case for its failure to obey court orders, it must use the least severe sanction which will adequately punish the government and secure future compliance.” United States v. DeCoteau, 186 F.3d 1008, 1010 (8th Cir. 1999) (quoting United States v. Hastings, 126 F.3d 310, 317 (4th Cir. 1997)). In making such a determination, “a court must weigh the reasons for the government's delay and whether it acted intentionally or in bad faith; the degree of ...


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