OPINION AND ORDER With a March 30, 2020 scheduled trial, the government advised the Court on February 13, 2020 that it “recently learned that it was in possession of additional materials” that had not been produced to defendant Niket Jain, despite representations that discovery was complete. (Doc. 63). The government estimated the unproduced materials amounted to “approximately 5 terabytes” of data. (Id.)1 The materials were located on three electronic devices that had been turned over to the government by a key cooperator, Individual-1. The government later revealed that the materials had been in its possession since October 10, 2018. The existence of the materials was known to the original case agent and two members of the prosecution team, one of whom has been on the case continuously since then. The Court conducted an evidentiary hearing at which the defendant called as witnesses an Assistant United States Attorney and a Special Agent of the Federal Bureau of Investigation (“FBI”). Other members of the prosecution team provided declarations under penalty of perjury. Based upon the entirety of the record, the Court concludes that the failure to timely produce this data was the result of a pattern of inattentiveness, carelessness, failure of recollection, failure of the original case agent to speak up at critical junctures, failure of the original case agent to communicate critical information to his successor, failure of the successor case agent to review the entirety of the case file and failure of a prosecutor to make prudent and timely inquiries of the original and successor case agents. These inexcusable failures bespeak of negligence and not conduct that was intentional or recklessly indifferent to the rights of Jain. Because of the Covid-19 pandemic, jury trials in the District were suspended and the trial could not have proceeded on March 30. Thus, the non-production did not delay defendant’s trial, although the pandemic did. Jain’s trial is now set for jury selection on November 23, 2020 and testimony will begin on November 30. As of the time of trial, counsel for defendant Jain will have had the late produced materials for over nine months, and the Court concludes that any prejudice to the defendant will have fully dissipated. Indeed, if the non-produced material had been produced in a timely manner when the bulk of discovery was produced in late June 2019, the Court still would have set the original trial date for March 30, 2020, as it did on October 11, 2019. The Court still would not have allowed a new attorney to enter the case for Jain if it would have necessitated moving the March 30 trial date to accommodate his family vacation schedule and the March 30 trial date still would have been delayed by the pandemic. Defendant’s motion to dismiss based upon violations of his rights to due process, counsel of his choice and a speedy trial will be denied. The Court will order certain remedial action on the part of the Acting United States Attorney and the Special Agent in Charge of the New York Field Office of the FBI. BACKGROUND On January 28, 2019, Jain was indicted on one count each of conspiracy to commit securities and wire fraud, securities fraud, wire fraud, and obstruction of justice. (Doc. 1). During the relevant period, Jain is alleged to have been a managing member of an investment company, Aberon Capital Management (“Aberon”), along with a co-conspirator, Individual-1. Jain and Individual-1 are alleged to have provided false representations to two investors, Investor-1 and Investor-2, in the fund controlled by Aberon regarding the fund’s performance. (Doc. 1). Jain is also alleged to have obstructed justice by lying to the Securities and Exchange Commission (“SEC”) during an inquiry into Aberon. (Doc. 1). On February 13, 2020, despite previous representations that the production of discovery materials was complete, the government disclosed to the Court that it possessed two computers and a cellular phone belonging to Individual-1, the contents of which had not yet been produced to Jain. (Doc. 63). On February 28, 2020, the contents of these electronic devices were produced to Jain.2 (Doc. 109-6 14). On March 27, 2020, Jain moved to dismiss the indictment, arguing that the government’s failure to timely produce the contents of Individual-1′s devices was an act of deliberate misconduct that violated his right to counsel of his choice and his right to a speedy trial. (Doc. 73). Jain subsequently argued that the indictment ought to be dismissed for violation of his due process rights. (Doc. 110 at 2). FINDINGS OF FACT In its inquiry into the government’s failure to timely produce the contents of Individual-1′s electronic devices and the related statements to the Court regarding the status of discovery productions in the case, the Court has received considerable briefing and held two lengthy conferences with the parties, on April 15, 2020 and May 6, 2020 respectively. The Court has received sworn declarations from the relevant members of the government’s prosecution team. (Docs. 109-1 to 109-7). On August 12, 2020, the Court held a hearing on this issue and heard live, in-person testimony from two members of the government’s prosecution team, Assistant United States Attorney (“AUSA”) Tara La Morte and FBI Special Agent (“SA”) Wayne Boddy, who were called as witnesses by defendant. Based on the proceedings in the case and the record on the motion, the Court makes the following findings of fact.3 1. In or around mid-2017, the government began to investigate Jain and Individual-1 for their conduct related to Aberon. (Doc. 109-1 1; Doc. 109-2 2). 2. On or about September 12, 2018, Individual-1 was arrested on charges of securities and wire fraud related to Aberon. (Doc. 109-3 4). 3. In addition to the charged crimes, the government was also investigating Individual-1 for possible money laundering offenses involving Aberon. (Boddy Supp. Dec. 4). SA Boddy did not believe this investigation related to Jain as the Aberon transactions at issue occurred after Jain had left Aberon. (Aug. 12, 2020 Tr. (“Tr.”) at 116:12-23 (Doc. 124)). 4. Following his arrest, Individual-1 participated in proffer sessions with the government’s prosecution team, which at that time included AUSA Andrew Adams, AUSA La Morte, and SA Boddy. (Doc. 109-1 3). 5. During the course of proffer sessions with the government, Individual-1 consented, through his lawyer David Gourevitch, to turn over two computers and a cellular phone (the “Devices”). (Doc. 109-1 4). Between October 5 and 9, 2018, all members of the prosecution team were included on (or were forwarded) emails coordinating the retrieval of the Devices by the FBI from Individual-1. (Doc. 109-1 4; Doc. 109-2 6; Doc. 109-3
6-7). 6. On October 10, 2018, SA Boddy retrieved the Devices from Individual-1. SA Boddy turned the Devices over to the FBI’s Computer Analysis Response Team, or “CART,” for imaging and uploading to an internal FBI review platform called “CAIR.” SA Boddy recorded receipt of the Devices and the upload of the contents in an FBI report, which was added to the case file for this investigation. The case file itself was stored on an internal FBI system called “Sentinel.” By October 16, 2018, SA Boddy had returned all of the original Devices to Individual-1. (Doc. 109-2 8; Tr. at 18:7-19:16, 115:12-17). 7. Around this same time, SA Boddy also accessed Individual-1′s personal and Aberon Gmail accounts with consent and downloaded their contents to his FBI computer for review. (Doc. 109-2 9; Tr. at 89:18-119:4). 8. Based on information gained from Individual-1 during the proffer sessions, SA Boddy believed that the emails retrieved from the Gmail accounts contained information relevant to the investigation of Jain and, therefore, focused his efforts on reviewing the emails rather than the contents of the Devices. With the exception of certain text messages, which were related to an investigation of Aberon which he believed to be unrelated to Jain’s alleged crimes, SA Boddy did not review the contents of the Devices at this time or at any subsequent point. (Doc. 109-2
