*1 This case has been referred to the undersigned by the Hon. Richard J. Arcara pursuant to 28 U.S.C. § 636(b)(1) to address all pre-trial matters and to hear and report upon dispositive motions. (Dkt. No. 13). Before the Court are several issues raised within defendant's pretrial motions which were re-referred to this Court by Decision and Order of Judge Arcara issued on April 6, 2022. (Dkt. No. 86). For the following reasons, the defendant's demand for disclosure of informant identity information is denied as moot; the Court's prior decision on defendant's demand for information concerning the relationship between defendant and “A.H.” is unchanged; and defendant is entitled to disclosure by the Government of additional specified Brady/Giglio material. Further, for the following reasons, it is recommended that defendant's motions to suppress video recorded evidence and related motion to dismiss the indictment be denied; and that defendant be permitted to proceed to trial with his current counsel.

The Court assumes familiarity among the parties with the facts of this case and its procedural history. Therefore, only the relevant history is outlined here. On October 29, 2019, a federal grand jury in the Western District of New York returned a single-count indictment against Thaddeus Coleman, Jr. charging him with being of a felon in possession of a firearm and ammunition, in violation of Sections 922(g)(1) and 924(a)(2) of Title 18 of the United States Code. (Dkt. No. 11).

Defendant previously filed omnibus pretrial motions seeking discovery and disclosure from the Government. (Dkt. No. 37). Following briefing and oral argument, this Court issued a Decision and Order on defendant's motions on December 17, 2021. (Dkt. No. 71). Defendant then appealed the Decision and Order to the District Court. (Dkt. No. 77). Following briefing and oral argument on the appeal, the District Court concluded that it needed additional information to resolve the discovery issues presented. (Dkt. No. 82). Accordingly, on April 6, 2022, the District Court issued a Decision and Order referring the matters back to this Court for resolution and for a possible hearing. (Dkt. No. 86).

On April 21, 2022, the parties appeared before this Court for a status conference to discuss the discovery issues. At that time, the Government was directed to produce additional documents to the defendant and to produce other documents to the Court for in camera review. The Court also scheduled an evidentiary hearing to address the issues raised about the video recording of the controlled handgun buy. The parties provided status reports to the Court on June 3, 2022 and June 6, 2022. (Dkt. No. 92; 96).

On June 9, 2022, the Court issued a text order finding that the Government had failed to fully comply with the prior directives of the Court. (Dkt. No. 98). The Court ordered the Government to take specified actions and to provide a report of the additional discovery produced to defendant. (Id.). On June 30, 2022, the Government complied with that order by filing a Notice of Affidavit Pursuant to Court Order on June 30, 2022 (Dkt. No. 99). The Government further complied by providing, for in camera review, the Drug Enforcement Administration's personnel files for former Special Agent Joseph S. Bongiovanni on June 15, 2022 and August 5, 2022, along with correspondence dated July 28, 2022 from the U.S. Department of Justice, Office of Chief Counsel detailing its review of the personnel files for potential impeachment evidence.[1]

*2 Following several adjournments, an evidentiary hearing was held before this Court on October 26, 2022. The parties simultaneously submitted post-hearing memoranda (Dkt. Nos. 120; 121) and responsive memoranda (122; 123).

The parties also appeared before this Court on February 15, 2023, at which time the parties agreed that a Curcio hearing regarding a possible conflict of interest was necessary before moving forward with oral argument on the post-hearing submissions. Independent Curcio counsel, Jeremy D. Schwartz, Esq., was appointed for defendant and a Curcio hearing was held on February 22, 2023. The hearing was continued and held on March 8, 2023. Upon conclusion of the Curcio hearing, oral argument on all outstanding issues was heard by this Court on April 4, 2023.

The District Court re-referred defendant's pretrial motions to this Court for additional fact-finding and consideration of specified issues. The basis for Judge Arcara's re-referral and the Court's recommendations as to each of those issues are discussed below.

1. Request for Disclosure of Information Concerning Relationship Between A.H. and Defendant and Identify of Informant

The Government previously asserted a qualified privilege under Roviaro v. United States, 353 U.S. 53, 59 (1957), to withhold the identity of a Confidential Source (“CS”) used in this investigation on the basis that Government did not intend call the CS as a witness at trial. However, in response to defendant's appeal of this Court's Decision and Order, the Government stated that it was undecided as to whether the CS would be called as a witness.

Judge Arcara found the Government's uncertainty as to whether it would call the CS as a trial witness to be in conflict with the Government's position and reasoning on defendant's demand for exculpatory information regarding the relationship between defendant and “A.H.”[2] More specifically, defendant believes that the Government is in possession of exculpatory information in the form of statements A.H. allegedly made to the Government to the effect that, at the time of the alleged gun sale, A.H. did not know defendant and had never spoken with him before. The District Court agreed with this Court's reasoning that information about the relationship, if any, between A.H. and defendant is irrelevant to the charges of the Indictment, i.e., whether defendant was a felon in possession of a firearm and ammunition, and that defendant is not entitled to Brady information which he already possesses. However, this Court also accepted the Government's reasoning in support of non-disclosure that the Defendant would have the opportunity to cross-examine the CS on the topic of Defendant's alleged non-relationship with A.H. and the arrangement of the controlled purchase of a weapon.

This potential discrepancy in the Government's position is now mooted by the Government's affirmative representation to this Court that it intends to call the Confidential Source as a witness as trial ensuring that defendant will have an opportunity to cross-exam him about the relevant events. Further, the Government represents that it has since turned over all Jencks Act, 18 U.S.C. § 3500, witness statements and material to defendant. Additionally, the video recording of the alleged controlled purchase of a handgun from defendant by the Confidential Source was played in open court during the evidentiary hearing on October 26, 2022. This allowed defendant to personally observe the identity of the Confidential Source, who is depicted in the video.

*3 Thus, the Court finds that defendant's demand for disclosure of the CS's identify is moot and the Court's prior decision and reasoning regarding the Government's disclosure of information regarding A.H. to defendant is unchanged.

2. Video Recording of Controlled Buy of Handgun

Defendant appealed this Court's finding that the Government had met its Fed. R. Crim. P. 16 discovery obligations regarding production of recorded or videotaped evidence purporting to show the defendant in the presence of the Confidential Source on August 16, 2019, at which time defendant is alleged to have provided the CS with a bag containing a firearm and ammunition. When pretrial motions were initially pending before this Court, defense counsel raised an issue about the lack of sound in that recording. The Court directed the Government to verify with law enforcement agents whether some, none, or all of the original recording contained audio. The Government affirmed to this Court that the recording contained video images only and did not contain sound or audio from the transaction. (Dkt. No. 70, pg. 5 n.1). Based upon these representations, the Court found that the Government had satisfied its Rule 16 discovery obligations.

Defendant objected to this finding on the basis that counsel observed audio at the beginning of the video which then cuts off for the remainder of the recording. Defendant sought answers as to why the audio is missing, explaining that the audio portion of the recording is critical to his defense. He believes the audio was turned off due to “manipulation of the tape by others.” When questioned by the District Court, the Government explained that the initial portion of the video does have audio but it “cuts off” quickly due to a technical issue. The Government argued that the lack of audio is not exculpatory and is simply a matter for cross-examination.

Because this Court's prior finding that there was no audio during any part of the recording was erroneous, and because defendant had not previously raised the argument that someone purposefully manipulated the tape, the District Court directed this Court to “revisit Defendant's demand concerning the lack of audio on the video recording, only if the finding that there is some audio but the audio ‘cuts off’ partway through the video changes the Magistrate Judge's analysis of the Government's Rule 16 discovery obligation.”

Pursuant that directive, the Court held an evidentiary hearing on October 26, 2022, from which it makes the following findings of fact and conclusion of law.

During the evidentiary hearing, the Court heard the testimony of Scott Sprague, Drug Enforcement Administration (“DEA”) Task Force Officer (“TFO”), and Corey Smith, Technology Director at Sur-Tec, Inc. Their testimony related to the controlled purchase of a firearm and ammunition by the Confidential Source from defendant, the surveillance recording made of those events, and the technical process involved with preserving the surveillance recording.[3]

On August 16, 2018, members of a DEA Task Force, including TFO Sprague, met with a confidential source to arrange a controlled buy of a firearm.[4] (Tr. 4-7). In order to capture the incident, law enforcement gave the CS a monitoring and recording device consisting of a cellular telephone equipped with a software system or application known as “Casper.” (Tr. 5-6). The Casper application runs on a cellular phone or tablet and can be used by undercover agents or informants to transmit and/or record audio and video of events. (Tr. 54). In this instance, the recording device was turned on by law enforcement and then given to the CS, who was driven by an undercover officer to the meeting location. (Tr. 5-6). While the interaction between the CS and defendant took place, other agents were in the area and “kept eyes on everything.” (Tr. 8).

*4 TFO Sprague summarized that the recording of the transaction begins with several people, including himself, former agent Joseph Bongiovanni, an undercover officer (TFO Walker), and the Confidential Source, walking around the parking lot of the DEA office preparing for the investigation. (Tr. 8-9, 13-14, 16-17, 20-22). The video then shows the CS driving in a car with the undercover officer and arriving at a location. (Tr. 13). The video continues to show the CS exiting the car, walking to another location, interacting with another individual (“the deal takes place”), and then walking back to the undercover officer's car. (Id.).

TFO Sprague's summary is consistent with the Court's impression of the recording. The Court observes that the footage is very shaky and the CS's surroundings are frequently obscured due to the position of the camera and the CS's movements.

TFO Sprague further testified that he has viewed the video recording of the events and he believed that it contained no audio. (Tr. 13). TFO Sprague later clarified that he recalled there being some audio during “a few brief seconds” at beginning of the recording only. (Tr. 15-16, 22-23). He explained, “there was some [ ] audio of us talking in the parking lot real quick, and then it goes off.” (Id.). He had never heard audio for any other portion of the video. (Tr. 17). Corey Smith also testified that he had watched the video and remembered that there was a “short portion of audio at the very beginning of the video” only. (Tr. 62) However, the recording which was played during the evidentiary hearing did not contain audio during any portion of it. (Govt. Ex. 1). TFO Sprague testified that he had made multiple exact copies of the recording from an original disc, including the version on a flash drive which was offered and admitted as evidence. (Tr. 15-16). Neither of the witnesses offered an explanation as to why one copy of the recorded evidence contained a short portion of audio, and another version did not. (Tr. 78-79).

Once the purchase was completed, the CS returned to the undercover officer's vehicle. (Tr. 6-7). The undercover officer took possession of the device and a firearm that was purchased by the CS. (Tr. 7). The undercover officer and the CS then returned to a prearranged location to meet other members of law enforcement. (Tr. 7). At that location, the undercover officer gave the device to either TFO Sprague or former DEA Special Agent Bongiovanni. (Tr. 7). Agent Sprague could not recall which of them took possession of the device. (Id.).

After debriefing, TFO Sprague and Bongiovanni took the recording device back to the DEA office in order to download the recording. (Tr. 7). To do so, agents typically plug the device into a “main computer,” using software to download the recording onto a CD, then download it onto another CD so a permanent copy can be placed in evidence. (Tr. 9). In this instance, TFO Sprague and Bongiovanni encountered a problem and were unable to save the recording properly. (Tr. 9). They immediately notified their supervisor, DEA Special Agent Gregory Yensan, of the issue. (Tr. 10). On the same date, Agent Yensan contacted a technology company, Sur-Tec, to assist with recovering the footage from the device. (Tr. 12, 49). At that time, TFO Sprague believed that they were unable to access any of the recorded files. (Tr. 49).

In response to Agent Yensan's request, Sur-Tec advised him to email “everything” so they could attempt to recover any portions of the files that they could. (Tr. 9, 58). The following day, on August 17, 2018, the company advised the DEA that they were able to recover the video recording but not the audio portions of the recording. (Tr. 12, 49).

*5 Sur-Tec's Technology Director, Corey Smith, testified that that Casper is an application used by law enforcement that runs on a phone or other device and can be used to transmit live audio and video to a support team and record audio and video onto the device. (Tr. 54). To record an incident, the application is turned on by logging in and using a switch to turn on audio and a switch for video and a switch for location. (Tr. 54-55). In this instance, Smith recalled that, on August 16, 2018, his company was sent a video file recorded on Casper that was corrupt or unplayable. (Tr. 55, 57-58). The file was repaired using a third-party tool that repairs corrupt video files according to the standard process used by Sur-Tec. (Tr. 58).

The repaired recording file was then returned to law enforcement. (Tr. 58). TFO Sprague believed that the file was returned to Agent Yensan and downloaded onto a disc by former agent Bongiovanni. (Tr. 12, 51-52). TFO Sprague confirmed that he authored a “DEA-7a” report which noted that the disc was acquired and placed into the DEA evidence vault by Bongiovanni. (Tr. 25-29).[5]

Smith further testified that he has encountered and recovered unplayable recordings many times for law enforcement. (Tr. 55). Problems with recordings occur for many reasons; the most common of which being that the phone shuts off while recording due to the phone overheating, the battery dying, or there is a crash in the software. (Tr. 56). These interruptions prevent the software application from finishing writing the file in a way that would make it playable. (Id.). Smith has also recovered video that does not contain complete audio in other instances. (Id.). He explained that this occurs because the tool used to recover files “focuse[s] on recovering the video file and not the audio. It tries to recover the audio, but the tool's main purpose is to get the video, to recover the video.” (Tr. 56-57).

Smith testified that, using the Casper application, it is possible for an individual from another location to stop the recording, or stop the audio recording only. (Tr. 55). He also stated that although it would be “technically” possible to modify or tamper with an audio recording, it would be very difficult to do “out in the field,” and would require “specialized knowledge” and, most likely, the use of a computer. (Tr. 60-64). Based on his review of the video recording and files, Smith could not tell “100 percent” if the recording was altered or tampered, but he saw no indication that it was modified in any way other than the repair process. (Tr. 64-65).

TFO Sprague testified that he was not aware of anyone tampering with or modifying the video recording. (Tr. 10). He was also unaware of anyone editing the video recording. (Id.). Sprague stated that he was not aware of how to stop an audio recording while the CS had the recording device. (Tr. 11). Sprague further stated that he has dealt with “a number of transactions where the recordings don't record,” whether it be audio or video, and stated that he does not know why that happens. (Id.).

TFO Sprague also testified that on July 16, 2019, he retrieved the CD containing the repaired file recording from the DEA's evidence vault, and discovered that the disc was blank. He explained:

(Tr. 35). He further clarified that the disc contained only a copy of the repaired file and that he was able to use the original repaired file to create another copy. (Tr. 39-40, 49-50). Sprague encountered a similar problem when attempting to copy the recording again in preparation for the evidentiary hearing. He stated:

(Tr. 40).

TFO Sprague also testified that the recorded file was sent back to Sur-Tec a second time shortly before the date of the evidentiary hearing. (Tr. 40-41). He was unaware of the results of those efforts. (Tr. 41). Smith confirmed that he recently sent emails to TFO Sprague requesting a copy of the original corrupted video file to see if any further file recovery could be made.[6] (Tr. 70, 74-76). TFO Sprague looked for original file but could only find the repaired video file, which he provided again. (Tr. 70-71). Smith was not able to recover any further information from that repaired version. (Tr. 75).

It is noted that after having the opportunity to listen to TFO Sprague and Mr. Smith and observe their demeanors during the hearing, the Court finds them to be wholly credible.

In addition to his Rule 16 discovery requests, defendant now argues that the video recording should be suppressed from evidence because of portions of missing audio. (Dkt. Nos. 121; 122). Defendant also moves to dismiss the indictment based on the Government's alleged spoliation of evidence related to the recording. (Id.). The Government submits that no spoliation has occurred and argues that the recording is admissible and should not be suppressed. (Dkt. Nos. 120; 123).

From the evidence adduced at the hearing, the Court finds that defendant is not entitled to dismissal or other relief based on his assertions of spoliation of evidence. The Second Circuit has defined spoliation to be “the destruction or significant alteration of evidence, or failure to preserve property for another's use as evidence in pending or reasonably foreseeable litigation.” United States v. Odeh (In re Terrorist Bombings of U.S. Embassies in E. Africa), 552 F.3d 93, 148 (2d Cir. 2008). A criminal defendant moving for dismissal on the basis of spoliation of evidence must make a two-pronged showing that the evidence possessed exculpatory value “that was apparent before [it] was destroyed” and that it was “of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means.” See California v. Trombetta, 467 U.S. 479, 488-89 (1984). However, where, as here, the Government has instead failed to preserve evidentiary material that is potentially useful or potentially exculpatory, a defendant is only entitled to relief if: (1) the government acted in bad faith in destroying the evidence; (2) the evidence possessed an exculpatory value that was apparent before it was destroyed; and (3) the defendant was unable to obtain comparable evidence by any other available means. See United States v. Hunley, 476 Fed. Appx. 897, 898-99 (2d Cir. 2012) (summary order) (citing United States v. Tyree, 279 F. App'x 31, 33 (2d Cir. 2008)); see also Arizona v. Youngblood, 488 U.S. 51, 58 (1988) (“[U]nless a criminal defendant can show bad faith on the part of the police, failure to preserve potentially useful evidence does not constitute a denial of due process of law.”). Failure to satisfy any of these requirements, including a failure to show the Government's bad faith, is fatal to a defendant's spoliation motion. United States v. Greenberg, 835 F.3d 295, 303 (2d Cir. 2016).

*7 Defendant argues that he is entitled to dismissal of the indictment on the basis of spoliation of evidence. He believes that the Government tampered with and destroyed the original surveillance recording of the controlled purchase. Defendant submits that such tampering or destruction may have occurred at the hand of former agent Bongiovanni, who was involved in the investigation and handled the recorded evidence, for nefarious reasons. Defendant offers no explanation for this allegation other than the fact of criminal allegations brought against Bongiovanni subsequent to these charges and the Government's alleged minimization of Bongiovanni's role in this investigation. Defendant claims that the testimony at the hearing supports a finding that the recording was intentionally destroyed.

The Court disagrees and finds that there is no evidence of tampering or destruction of evidence by the Government amounting to spoliation. First, defendant has not shown evidence of bad faith on the part of the Government. Despite defendant's claims that former agent Bongiovanni may have tampered with the recording, he has not pointed to evidence to support that. The Government has produced a video recording which shows events consistent with the allegations of the indictment and the testimony of Task Force Officer Sprague regarding the facts of the investigation. The hearing testimony shows that law enforcement intended to capture both an audio and video recording of the controlled purchase of a firearm from defendant. However, the device failed to either record or store sound due to an unknown technical malfunction.

The testimony of TFO Sprague, who was present during the events on August 16, 2018, reflected that a problem with the surveillance recording was realized immediately after the controlled transaction was complete. He explained that following the purchase, the CS returned to the vehicle of an undercover officer, to whom the CS gave the firearm and returned the recording device. Sprague recalled that the undercover officer then gave the device to either himself or Bongiovanni. Sprague and Bongiovanni returned to DEA's Regional Office wherein they attempted to download the recorded evidence onto a computer in the office. For unknown reasons, the recording would not download or save appropriately, and Sprague and Bongiovanni could not access any files from the device. They immediately sought the assistance of Bongiovanni's supervisor, Agent Yensan, who in turn contacted Sur-Tec, a technology support company used by the DEA, for assistance with the recording. The testimony of Corey Smith, Technology Director for Sur-Tec, was consistent with that of TFO Sprague. Mr. Smith testified that Sur-Tec was notified of the issue by Agent Yensan on August 16, 2018 and requested that all the files be emailed to the company so that they could attempt to repair the files. The following day, Sur-Tec advised the DEA that they were able to recover the video recording but could not recover the audio portions of the recording.

Although Mr. Smith could not offer an explanation as to why, in this instance, the recorded file was corrupt or unplayable, he explained that it is not uncommon for problems to occur with the type of software used here. He explained that similar errors can occur for a number of reasons, including due to the phone or device shutting off, the phone or device overheating, the battery dying, or a crash in the software, all of which would prevent the application from finishing writing the digital file. He further explained that his company uses a software tool to attempt to recover corrupt files. The tool prioritizes recovery or repair of video files over the audio files. That can result in a repaired file that preserves a video recording but is lacking some or all of the audio recording. TFO Sprague has also encountered similar technical problems with surveillance recordings not working correctly, including with lack of audio.

*8 Moreover, none of the testimony suggests that tampering or misconduct occurred in relation to this recording. TFO Sprague affirmed that he did not tamper with, edit, or modify the video recording. He was not aware of anyone else tampering with, editing, or modifying the recording. Mr. Smith explained that although it would be possible to turn off the audio component of the device remotely, or to otherwise tamper with or modify a recording, it would require specialized knowledge to do so and would likely need to be done from a computer. From his review of the video and the file, he did not see any indication that the recording was modified or altered other than during the repair process. Based on this, the record does not support “a finding or even a suspicion that the missing footage was unavailable as a result of any bad faith, or an unintentional or even negligent act of destruction on the part of the government.” United States v. Walker, 974 F.3d 193, 209 (2d Cir. 2020).

In addition to the initial problems with downloading and recovering the video file, defendant further argues that TFO Sprague's testimony about a blank disc being held in the DEA's evidence vault in 2019 shows that the Government has destroyed evidence. To the contrary, TFO Sprague's testimony explained that although one copy of the video recording was blank, he was able to access the recording from the original repaired file. Further, the fact that the Government was able to produce the video recording for admission into evidence at the hearing demonstrates that the alleged destruction of this video evidence has not occurred.[7]

Second, defendant has failed to show that the evidence possessed an exculpatory value that was apparent before it was destroyed. When questioned by the Court about the potential exculpatory value of the audio component of the recording, defendant posited only that a recording of the conversation between the CS and defendant could support defendant's claim that he never sold a gun to the CS. This explanation is speculative and fails to describe how the recording of that conversation could exculpate defendant from the charge of being a felon in possession of a firearm. The Government contends that the audio of this recording was highly incriminating. Even in the absence of the audio, the Government argues that the recording places the defendant as a participant in the transaction and will serve to corroborate the CS's testimony.

Third, although defendant's access to comparable evidence is limited by the loss of the audio component of the recording, it is significant that defendant was present during the alleged controlled purchase. He has personal knowledge of the events that transpired, including knowledge of any conversation between himself and the CS, which he can use to cross-exam the CS or otherwise defend against these charges.

Accordingly, the Court recommends that defendant's motion to dismiss the indictment on the grounds of spoliation of evidence be denied.

Further, although this Court reserves any decisions about the admissibility of evidence to the discretion of the trial court, the Court finds no basis for this recording to be suppressed from evidence under the exclusionary rule. Defendant provides no legal grounds for suppression of this evidence and, in fact, does not even allege that a constitutional violation occurred. Defendant's only argument to support this position is that the audible portions of this recording were so limited that the evidence is more misleading than probative. See United States v. Bryant, 480 F.2d 785, 790 (2d Cir. 1973) (holding that unless the unintelligible or inaudible portions of a tape recording are so substantial as to render the recording as a whole untrustworthy, the recording is admissible and the decision should be left to the sound discretion of the judge). Here, the Court is not presented with an analogous situation of inaudibility of a tape recording. Rather, the Government intends to introduce video evidence without audio on the basis that the video-only recording alone is probative of the criminal allegations. Assuming the recording is admitted as evidence at trial, defendant will have an opportunity to cross-examine Government witnesses on the issue of the lack of audio in the recording and the existence or nonexistence of any conversations that took place. Nonetheless, the probative value and admissibility of the recording as trial evidence is best left to determination of the trial judge.

*9 Finally, returning to defendant's motion for Rule 16 discovery, the Court finds that the Government has complied with its obligations. The Government represents that, in addition to substantial discovery materials previously produced, it has further turned over to defendant the following: (1) DEA Form 473 confidential source agreement relevant to this investigation; (2) all relevant law enforcement reports, including: (a) one DEA-6 report dated August 12, 2018, (b) two DEA-6 reports dated September 4, 2018, (c) DEA-7a report dated August 27, 2018, and (d) one DEA-7a report dated August 20, 2019; (3) nine email communications between former agent Bongiovanni and the Government, which discuss scheduling grand jury time and technical treatment of the video recording; and (4) emails exchanged between TFO Sprague and Sur-Tec employees regarding recent additional recovery efforts for the video recording.[8] (Dkt. No. 99, ¶ 14). The Government has also provided defendant the complete video recording of the controlled buy, two still photographs from the video recording, a photo of the firearm and ammunition, a firearms trace report, the defendant's prior certificate of conviction, and an ATF report. (Id.). The Government affirms that it possesses no technical reports of the controlled buy recording from the technology company which assisted in recovering the recording. (Id.).

The Government is again reminded that its disclosure obligations continue up through and during trial. See Fed. R. Crim. P. 16(c).

3. Brady / Giglio Material

The District Court directed this Court to resolve outstanding questions about the extent of former DEA Special Agent Joseph Bongiovanni's involvement in the instant case and to re-examine defendant's demand for Brady and Giglio material related to Bongiovanni. This directive included exploration of the Government's trial evidence stemming from Bongiovanni's observations and interactions Bongiovanni had with the Confidential Source.

The District Court's decision focused the Second Circuit's holding in United States v. Jackson, 345 F.3d 59, 70-71 (2d Cir. 2003), to the effect that Brady and its progeny require disclosure of exculpatory and impeachment materials when they concern a testifying witness or a non-testifying hearsay declarant. There, the Court explained that “[a] contrary conclusion would permit the government to avoid disclosure of exculpatory or impeachment material simply by not calling the relevant witness to testify.” Id. Indeed, as Judge Arcara found, “the Government has an obligation to turn over Giglio material regarding hearsay declarants whose out of court statements will be admitted at trial, regardless of whether the hearsay declarant testifies.” United States v. Percoco, 16-CR-776, 2018 U.S. Dist. LEXIS 232236, at *4 n.1 (S.D.N.Y. June 14, 2018). The need for disclosure does not turn on whether the declarant is testifying in court, but whether the declarant's credibility has been put into issue and can thus be attacked. See United States v. Perez, 05-CR-441, 2005 U.S. Dist. LEXIS 24444, at *12 (S.D.N.Y. Oct. 20, 2005).

Accordingly, this Court has further examined the issue to determine whether the Government has fulfilled its obligation to produce Brady and Giglio material related to Bongiovanni's criminal case. In doing so, the Court ordered the Government to take certain actions and produce additional discovery materials. Based on this, the Court concludes that due to Bongiovanni's extensive role in the investigation of defendant, Bongiovanni is a hearsay declarant whose statements are likely to be admitted at trial regardless of whether he was to testify.

After re-referral of the matter, this Court made the following directives to Government:

(Dkt. No. 98). The Government has complied with each of the directives.

Based on affidavit of Assistant United States Attorney Misha Coulson dated June 30, 2023, (Dkt. No. 99), as well as the prior representations of the Government, the Court is satisfied that the Government has met its obligations under Brady v. Maryland, 373 U.S. 83, 87 (1963). AUSA Coulson's affidavit attests that she, along with AUSA Joseph Tripi, the prosecutor in U.S v. Bongiovanni, have conducted a thorough search of all things in the Government's possession regarding U.S. v. Coleman and U.S. v. Bongiovanni for exculpatory evidence favorable to defendant Coleman. From those searches, AUSA Coulson affirms that the Government possesses no Brady material relative to the prosecution of defendant Coleman or A.H.

AUSA Coulson further attests that an electronic search of the entire Bongiovanni case file was performed using the names of defendant, A.H., and the confidential source involved in the controlled buy. Her affidavit explains that to the extent defendant Coleman or A.H.’s names are mentioned in the Government's investigative case file on Bongiovanni, it is only because the Government acquired logs and records of all of Bongiovanni's cases. Although Bongiovanni's own files include information associated with his cases, these references and information do not constitute Brady or Giglio material. Such information, which has been provided to defendant, reflects the dates of recordings made and equipment used during investigations. The files also included an email dated September 13, 2018 which was received by Bongiovanni from the Buffalo Police Department regarding his request for records related to Coleman and A.H. AUSA Coulson further affirms that none of these materials constitute Brady material, nor are they relevant to the Government's investigation or prosecution of Bongiovanni.

AUSA Coulson also attests that the search of the CS's name resulted in “no information of which we are aware linking any of Bongiovanni's charged criminal conduct, or any of Bongiovanni's conduct within the scope of the federal investigation, to the CS.” She states that she and AUSA Tripi also performed a review of the DEA Regional Counsel's file on the CS used in this investigation. From that search, AUSA Coulson and Tripi confirmed that the CS has no known connection to the charges pending against, nor the continuing investigation into, Bongiovanni.

Regarding its obligation to produce evidence that is useful for impeachment of a prosecution witness, the Government maintains that it need not produce Giglio material for Bongiovanni. The Government represents that each of its trial witnesses will testify regarding their independent actions and observations during the course of this investigation. It represents that “none of the information elicited from these witnesses at trial will be attributed to, or rely upon, former DEA SA Bongiovanni.” Despite the Government's representations, it is clear to this Court that the Government will almost certainly rely on some out-of-court statements of Bongiovanni that will make him subject to impeachment as a hearsay declarant at trial. At minimum, the Government's case is supported in part by DEA-6 reports of investigation which were authored or co-authored by Bongiovanni, as well at least one DEA-7a report authored by TFO Sprague which refers to observations or actions of Bongiovanni in connection with the acquisition and storage of evidence. (See Hearing Transcript, Dkt. No. 110, pgs. 25-26, 35).

*11 To that end, the Court has completed an in camera review of its contents of DEA personnel files for Bongiovanni maintained by the United States Department of Justice, as well as additional materials provided by the DOJ Office of Counsel based on its own review of the files. Based on this record, the Court directs the Government to produce to defendant the following as potentially relevant material for impeachment of Bongiovanni:[9]

Additionally, the DOJ has confirmed, and defendant is hereby advised, that Bongiovanni is the subject of a pending internal investigation by the Office of the Inspector General. The Court concludes that the balance of the information contained in the personnel files is neither exculpatory nor does it qualify as Giglio material.[10] Importantly, this Court makes no findings as to the admissibility of the disclosed Giglio material, leaving such determinations to the discretion of the trial court.

Further, defendant has knowledge of and access to the indictment against Bongiovanni, which contains detailed allegations about his criminal conduct. Although the Court has found defendant to be entitled to certain impeachment material related to Bongiovanni, that finding does not entitle defendant access to the entirety of the Government's investigative file against Bongiovanni. Nor is defendant entitled to all records maintained by the Government in connection with Bongiovanni's past employment with the DEA. Defendant has been informed of the essential facts required to take advantage of potentially exculpatory information or impeachment material related to the criminal allegations against Bongiovanni. Brady does not demand an “open file” policy or give defendant the right to search through the Government's files for potentially relevant information. United States v. Seabrook, 16-CR-467, 2021 U.S. Dist. LEXIS 123482, at *7 (S.D.N.Y. July 1, 2021) (quoting Kyles v. Whitley, 514 U.S. 419, 437 (1995)). See also United States v. Bonventre, 10-CR-228, 2013 U.S. Dist. LEXIS 74829, at *29 (S.D.N.Y. May 28, 2013) (the fact that certain knowledge “could be helpful to the defense” or is “consistent with defense theories” does not render information “exculpatory in the Brady/Giglio sense”); United States v. Zackson, 6 F.3d 911, 918 (2d Cir. 1993) (“the rationale underlying Brady is not to supply a defendant with all the evidence in the Government's possession which might conceivably assist the preparation of his defense, but to assure that the defendant will not be denied access to exculpatory evidence only known to the Government.”). Additionally, further evidence about the criminal charges against Bongiovanni will be cumulative of the information defendant already possesses as a basis for impeachment. See United States v. Persico, 645 F.3d 85, 111 (2d Cir. 2011) (“where the undisclosed evidence merely furnishes an additional basis on which to challenge a witness whose credibility has already been shown to be questionable or is subject to extensive attack by reason of other evidence, the undisclosed evidence may properly be viewed as cumulative, and hence not material”).

*12 For these reasons, defendant's motion to compel production of Brady/Giglio material is denied except to the extent specified above. The Government is reminded of its continuing Brady obligations and the Government is directed to timely disclose to defendant any additional Brady or Giglio material it receives.

4. Conflict of Interest

The District Court's Decision and Order sua sponte raised the issue of whether there is a conflict, or potential conflict, of interest created by the law firm of defense counsel, Herbert Greenman, Esq., having previously represented Joseph Bongiovanni at the outset of the criminal case against him. Following briefing and a discussion of the issues, counsel for both the Government and defendant, as well as this Court, agreed that a potential conflict of interest may exist. (Dkt. Nos. 120, pg. 10; 122, pg. 5.). Based upon this, the Court concluded that a determination of the conflict, if any, and a hearing pursuant to United States v. Curcio, 680 F.2d 881, 885 (2d Cir. 1982), was necessary. The Court then set a date for a Curcio hearing and appointed Jeremy D. Schwartz, Esq., to act as defendant's independent Curcio counsel during the proceeding.

The first part of the Curcio hearing was held on February 22, 2023. At that time, the Court explained to defendant that he has a constitutional right to conflict-free counsel but that, in certain circumstances, he is permitted to waive that right and proceed with potentially conflicted counsel if he so chooses. The Court first informed defendant that Greenman, as his lawyer, owes him various duties of loyalty and confidentiality. The Court further explained to defendant that Paul Cambria, Esq., Greenman's partner at the law firm of Lipsitz Green Scime Cambria LLC, previously represented former DEA Special Agent Joseph Bongiovanni in separate criminal case pending before this Court. The Court detailed that, in that matter, Bongiovanni faces charges of, inter alia, conspiracy to defraud the United States, conspiracy to distribute controlled substances, obstruction of justice, and acceptance of a bribe as a public official. See United States v. Joseph Bongiovanni, W.D.N.Y., Case No. 19-CR-227, Dkt. No. 89. As defendant is aware, during his tenure as a DEA agent, Bongiovanni had a lead role in the investigation of defendant that supports the instant indictment.

The Court went on to explain that, because of the prior representation, Cambria owes Bongiovanni the same duties of loyalty and confidentiality that Greenman owes to defendant. The Court further explained to defendant that because Greenman and Cambria work at the same law firm, any conflicts of interest that arise as to one of them is imputed to the other. See N.Y. Rules Prof'l Conduct 1.10(a). As a result, Greenman owes Bongiovanni all the same duties of loyalty and confidentiality that are owed by Cambria. Therefore, as explained to defendant, Greenman cannot disclose any confidential information that Bongiovanni shared with Cambria during the course of his representation and Greenman may not be able to take certain positions adverse to Bongiovanni's interests, even if it would benefit defendant to do so.

The Court then went on to inform defendant that if he elected to continue with Greenman as his attorney in this case, a conflict between Greenman's ethical duties and defendant's interests could arise in a number of ways. First, Greenman could not use any information gained during the course of his law firm's representation of Bongiovanni during defendant's trial, including for cross-examination or impeachment purposes of any witnesses. Second, Greenman could be inhibited from making arguments or introducing evidence at trial if such positions are adverse to Bongiovanni's interests. Finally, Greenman may not be able to negotiate or represent defendant in a cooperation agreement and plea, if doing so would harm Bongiovanni's interests.

*13 After providing this information to defendant, the Court stated it would adjourn the proceedings to give defendant an opportunity to talk with both his current counsel and his independent Curcio counsel to ensure that he truly understood both the nature of the conflict here and his right to conflict-free counsel. The Court explained to defendant that after having the conflict more fully explained to him by the attorneys, and after having some time to think about these issues, defendant would be brought back before the Court. At that time, defendant could either (1) elect to waive the conflict and keep his current lawyers; or (2) elect to proceed with new, conflict-free counsel.[11]

The parties returned on March 8, 2023 for a continuation of the Curcio hearing. At that time, the Court asked defendant to explain, in his own words, what he understood the potential problems to be with Greenman continuing to represent him. Defendant was able to clearly articulate and explain the conflict, and appeared to understand the specific reasons why Greenman may be limited or restricted in fully representing his interests. Defendant then told the Court that he wished to waive the conflict and continue with Greenman as his attorney. Schwartz, who was acting as independent Curcio counsel for defendant, affirmed his belief that defendant understood the implications of the conflict and that defendant expressed his desire to continue with Greenman as his counsel. At that time, the Government also expressed its position that this is a waivable conflict of interest.

The Sixth Amendment right to effective assistance of counsel “generally ensures that an accused may be represented by any attorney who will agree to take his case.” United States v. Perez, 325 F.3d 115, 124 (2d Cir. 2003). A defendant has a “correlative right to representation that is free from conflicts of interest.” Cardoza v. Rock, 731 F.3d 169, 183 (2d Cir. 2013). A defendant may, of course, choose to give up his right to an “attorney of undivided loyalty in order to retain the attorney of his choice.” Curcio, 680 F.2d at 885. The Second Circuit has stated that “the interests of the defendant and the integrity of the judicial system are best protected by leaving this choice to defendant.” Williams v. Meachum, 948 F.2d 863 (2d Cir. 1991); accord Curcio, 680 F.2d at 885. Therefore, when a defendant's right to choose his counsel “conflicts with the right to an attorney of undivided loyalty, the choice as to which right to take precedence must generally be left to the defendant.” Perez, 325 F.3d at 125. To that end, a defendant's waiver of his constitutional right to conflict-free counsel will be honored if it is a knowing and intelligent choice, “a matter which depends in each case upon the particular facts and circumstances surrounding that case, including the background, experience and conduct of the accused.” Edwards v. Arizona, 451 U.S. 477, 482 (1981) (internal quotations and citations omitted).

Here, both defense counsel and the Government have taken the position that the conflict is waivable and that, if the Court finds defendant's waiver to be knowing and intelligent, defendant should be permitted to proceed with his current counsel of choice. However, courts have an “independent duty to ensure that criminal defendants receive a trial that is fair and does not contravene the Sixth Amendment.” Wheat v. United States, 486 U.S. 153, 161 (1988) (noting that federal courts have an “independent interest” in ensuring that criminal trials are conducted within the ethical standards of the profession and that legal proceedings appear fair to all who observe them). Therefore, when a district court is sufficiently appraised of even the possibility of a conflict of interest “it has a threshold obligation to investigate the facts and details of the attorney's interests to determine whether the attorney in fact suffers from an actual conflict, a potential conflict, or no conflict at all.” United States v. Arrington, 941 F.3d 24, 40 (2d Cir. 2019); United States v. Levy, 25 F.3d 146, 153 (2d Cir. 1994). If the Court discovers no genuine conflict, it has no further obligation. Id. “At the other end of the spectrum, if the court determines that counsel has an actual conflict that is so severe as to indicate per se that the rendering of effective assistance of counsel will be impeded ... the [C]ourt must ... disqualify counsel.” Perez, 325 F.3d at 125. If, between these two extremes, the Court determines that the “attorney suffers from a lesser [actual] or only a potential conflict,” then it may accept a defendant's knowing and intelligent waiver and permit the defendant to be represented by counsel of his choice. Id.; quoting Levy, 25 F.3d at 153.

*14 The issue at hand involves defense counsel's ethical obligations to a former client of his law firm. Rule 1.9 of the New York Rules of Professional Conduct sets out for attorneys the following professional duties to former clients:

The Rules of Professional Conduct further prohibit an attorney from (1) using confidential information of a former client to the disadvantage of the former client except where otherwise permitted by the Professional Rules or when the information has become generally known, and from (2) revealing confidential information of a former client. See N.Y. Rules. Prof'l Conduct 1.9(c); see also N.Y. Rules. Prof'l Conduct 1.6 (“Confidentiality of Information”).

A matter is “substantially related” to an earlier matter if: (1) the current matter involves the work the lawyer performed for the former client; or (2) there is a substantial risk that representation of the present client will involve the use of information acquired in the course of representing the former client, unless that information has become generally known. United States v. Pizzonia, 415 F. Supp. 2d 168, 177 (E.D.N.Y. 2006) (Restatement (Third) of the Law Governing Lawyers § 132). The Second Circuit has determined that the “substantial relationship” test is met when “the relationship between the issues in the prior and present cases is patently clear ... [and when] the issues involved have been ‘identical’ or ‘essentially the same.’ ” Monzon v. United States, 13-CV-1943, 2013 U.S. Dist. LEXIS 128129, at *7-8 (S.D.N.Y. Sept. 9, 2013) (quoting Gov't of India v. Cook Indus., Inc., 569 F.2d 737, 739-40 (2d Cir. 1978)).

A serious problem arises when “there is a substantial risk that the lawyer's representation of the client would be materially and adversely affected by the lawyer's own interest or by the lawyer's duties to another current client, a former client, or a third person.” Pizzonia, 415 F. Supp. 2d at 176 (E.D.N.Y. 2006) (quoting Restatement § 121). Further, a serious conflict warranting disqualification could arise if the attorney is “potentially in a position to use privileged information obtained during prior representation” of a former client. United States v. Cunningham, 672 F.2d 1064, 1072 (2d Cir. 1982).

That being said, the Second Circuit has emphasized that the class of cases in which an attorney conflict is truly unwaivable is a “very narrow” one. United States v. Cain, 671 F.3d 271, 294 (2d Cir. 2012). The Second Circuit has expressly held that “[i]n most cases when a defendant is faced with a situation in which his attorney has an actual or potential conflict of interest, it is possible for him to waive his right to conflict-free counsel in order to retain the attorney of his choice.” United States v. Schwartz, 283 F.3d 76, 95 (2d Cir. 2002). “In rase cases, however, an attorney's conflict is unwaivable because it is so serious that no rational defendant would have knowingly and intelligently desired the conflicted attorney's representation, or because ... the conflict [is] so severe as to indicate per se that the rendering of effective assistance will be impeded.” Perez, 325 F.3d at 127. In determining whether a case rises to this level, courts must “balance the defendant's constitutional right against the need to preserve the highest ethical standards of professional responsibility.” Cunningham, 672 F.2d at 1070. Importantly, the Second Circuit has explained that the balance tips away from the defendant's right to counsel of his choice only in a “very narrow category of cases.” Perez, 325 F.3d at 126. Thus, the Second Circuit has cautioned courts not to “assume too paternalistic an attitude in protecting the defendant from himself,” [because] although the defendant's choice of counsel “may sometimes seem woefully foolish” to the court, the choice remains his. Curcio, 694 F.2d at 25.

*15 Based on the record before the Court, the Court finds that there exists a potential, waivable conflict of interest with respect to Greenman's representation of defendant in this case, due to Greenman's law firm's prior representation of Joseph Bongiovanni and Bongiovanni's involvement as a law enforcement agent in the investigation of defendant Coleman in this case.

As to the nature of the conflict, although Greenman has taken a position adverse to his former client in his pretrial motions (by arguing that Bongiovanni may have tampered with evidence), there is no overlap of subject matter between Cambria's former representation of Bongiovanni and Greenman's representation of defendant herein. In fact, the Government has attested to the fact that the criminal case against Bongiovanni does not involve defendant Coleman. There is also no evidence that Greenman has gained any specific information or personal knowledge about Bongiovanni that would be helpful to his client, other than that which is publicly known. Nonetheless, there is no question that Greenman is barred from using the fruits of his firm's prior representation to benefit Coleman. Thus, there is the potential for a conflict between Greenman's obligations to his law firm's former client and his obligations to the defendant herein, but no such conflict has arisen yet. See Perez, 325 F.3d at 125 (finding that an attorney suffers from a potential conflict when the “interests of the defendant may place the attorney under inconsistent duties at some point in the future”).

Second Circuit case law supports a finding that a defendant may waive a conflict, like the one presented here, involving a lawyer's ethical obligations to another individual even where it could require him to forego a specific, available defense. See Meachum, 948 F.2d 863 (upholding conviction where defendant knowingly waived right to conflict-free counsel and agreed not to present “lookalike” defense because his attorney had represented the “lookalike” individual). As such, defendant here has been warned that Greenman's duty of loyalty to his law firm's former client could impair his ability to present certain defenses if they were to involve allegations against Bongiovanni or knowledge gained through prior representation of Bongiovanni.

Further, even if Bongiovanni were to be called as a trial witness, in which case Greenman would be barred from fully cross-examining Mr. Bongiovanni, this conflict could be waived. Potential conflicts resulting from the possibility that a former client may be called as a trial witness are also considered waivable. See e.g., Arrington, 941 F.3d at 41 (conflict was potential where “it was not clear that [the witness] would testify or what he would say if he did” and waivable where attorney would be “barred from using the fruits of [previous] representation [of witness] to benefit [defendant] or from fully cross-examining witness[ ] about related events”); Cunningham, 672 F.2d at 1073 (2d Cir. 1982) (“[defendant] has demonstrated that he adequately perceives the circumstances and that he is willing to have circumscribed whatever right he might otherwise have to a fuller cross-examination of the [cooperating witness], in order to retain [the attorney who previously represented the witness] as his counsel”); Perez, 325 F.3d at 124 (“[L]esser conflicts, such as an attorney's representation of two or more defendants or his prior representation of a trial witness, are generally waivable.”).

*16 The Court has also considered additional factors that the Second Circuit has found relevant to determining whether a conflict can be waived. These additional factors include (1) “whether disqualifying the defendant's chosen counsel would create ‘real prejudice’ to defendant based on the length of the representation and/or counsel's familiarity with the case”; (2) “whether, if the conflict concerns the interests of another client, that attorney's relationship with the other client is continuing or has been terminated”; (3) “whether the current or former client affected by the conflict has initiated or joined in the motion to disqualify counsel”; and (4) “the availability of measures that might limit the danger posed by the conflict, such as restricting an attorney's cross-examination of a former client.” United States v. Stein, 410 F. Supp. 2d 316, 328 (S.D.N.Y. 2006).

These factors weigh in favor of allowing defendant to waive the conflicts posed by Lipsitz Green Scime Cambria LLP's prior representation of Bongiovanni. Greenman has represented defendant Coleman for over three years, beginning in February 2020, and he has a high level of familiarity with the issues of this case. Disqualification of Greenman at this juncture would likely result in significant delay and possible prejudice to defendant. Next, the relationship between the Lipsitz Green law firm and Bongiovanni was limited, spanning approximately six months and terminating in April 2020. The law firm no longer represents Bongiovanni. Further, neither Bongiovanni nor the Government has moved to disqualify Greenman from this case. Finally, restricting Greenman's cross-examination of Bongiovanni, in the unlikely event he was to be called as a witness, would sufficiently limit the risks posed by this conflict.

Thus, the Court finds this to be a potential conflict that is not so severe “that no rational defendant would knowingly or intelligently desire the conflicted lawyer's representation.” Levy, 25 F.3d at 153. The Court reaches this decision after balancing the defendant's constitutional right to be represented by counsel free from conflicts of interest, the defendant's right to choose his own counsel, and the need to preserve the highest ethical standards of professional responsibility.

Further, the Court finds that defendant has knowingly and intelligently chosen to waive his right to conflict-free counsel. After being fully informed of the nature of the conflict and its potential impact on his rights in this case, and after discussing the conflict with Greenman and with independent Curcio counsel, defendant has indicated that he wishes to waive the potential conflict and continue to have Greenman represent him. Based upon the representations made by defendant during the Curcio hearing held on February 22, 2023, and continued to March 8, 2023, the Court finds that defendant is mentally competent; that he understands the potential conflict here and the ways in which it could potentially adversely affect his interests; and that he has, nonetheless, made a knowing, intelligent, and voluntary waiver of his right to conflict-free counsel.

Therefore, the Court recommends that defendant be permitted to proceed to trial with his current counsel.

For the foregoing reasons, it is ordered that the defendant's demand for disclosure of informant identity information is denied as moot and the Court's prior decision on defendant's demand for information concerning the relationship between defendant and “A.H.” is unchanged. It is further ordered that defendant is entitled to disclosure by the Government of Brady/Giglio material as specified herein. Further, for the following reasons, it is recommended that defendant's motions to suppress video recorded evidence and related motion to dismiss the indictment be denied, and that defendant be permitted to proceed to trial with his current counsel.

*17 Pursuant to 28 U.S.C. § 636(b)(1), it is hereby ORDERED that this Report and Recommendation be filed with the Clerk of Court.

Unless otherwise ordered by Judge Arcara, any objections to this Report and Recommendation must be filed with the Clerk of Court within fourteen days of service of this Report and Recommendation in accordance with the above statute, Rules 59(b), 45(a), and 45(c) of the Federal Rules of Criminal Procedure, and Local Rule of Criminal Procedure 59. Any requests for an extension of this deadline must be made to Judge Arcara.

Failure to file objections, or to request an extension of time to file objections, within fourteen days of service of this Report and Recommendation WAIVES THE RIGHT TO APPEAL THE DISTRICT COURT'S ORDER. See Small v. Sec'y of Health & Human Servs., 892 F.2d 15 (2d Cir. 1989).

The District Court will ordinarily refuse to consider de novo arguments, case law and/or evidentiary material which could have been, but were not, presented to the Magistrate Judge in the first instance. See Paterson-Leitch Co. v. Mass. Mun. Wholesale Elec. Co., 840 F.2d 985, 990-91 (1st Cir. 1988).

Pursuant to Local Rule of Criminal Procedure 59(c)(2), written objections “shall specifically identify the portions of the proposed findings and recommendations to which objection is made and the basis for each objection, and shall be supported by legal authority.” Failure to comply with these provisions may result in the District Court's refusal to consider the objection.

SO ORDERED.