United States District Court, D. Minnesota
L. Marks, Roger J. Gural, and Jacqueline Blaesi-Freed, U.S.
Department of Justice, Consumer Protection Branch, on behalf
M. Pacyga and Marie Celine Pacyga, Pacyga and Associates, PA,
on behalf of Defendant
MEMORANDUM OPINION AND ORDER
RICHARD NELSON United States District Court Judge
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]. 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.
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].
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.
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).
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.)
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.)
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.)
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].)
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 ...