USA v. Gogolack, et al.

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
UNITED STATES OF AMERICA,
v.
SIMON GOGOLACK, et al.,
Defendants.
23-CR-99-LJV-JJM
DECISION & ORDER
Before the Court are cross-appeals from a decision and order in which United
States Magistrate Judge Jeremiah J. McCarthy found that the government had acted in
bad faith by failing to comply with a discovery deadline and ordered sanctions, including
disqualifying three prosecutors assigned to the case.1 Docket Item 200. After careful
review and extensive thought, this Court vacates Judge McCarthy’s finding that the
government acted in bad faith and modifies the sanctions as explained below.
BACKGROUND
On September 13, 2023, a grand jury in the Western District of New York
indicted Simon Gogolack for conspiring to possess with intent to distribute and
conspiring to distribute fentanyl, cocaine, methamphetamine, marijuana, and
Alprazolam (Xanax); maintaining drug-involved premises; possessing firearms in
furtherance of drug trafficking; possessing a firearm and ammunition after having been
1 Judge McCarthy initially found bad faith and ordered briefing on the appropriate
sanction. Docket Item 173. The government moved for reconsideration of the bad faith
finding, which Judge McCarthy denied in the same decision and order in which he
ordered sanctions. Docket Item 200.
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convicted of a felony; and possessing a firearm and ammunition when he was using
controlled substances. Docket Item 12. The case was assigned to United States
District Judge John L. Sinatra, Jr., who referred it to Judge McCarthy for pretrial
proceedings. Docket Item 14. A week later, the grand jury issued a superseding
indictment adding charges of kidnapping and tampering with a witness. Docket Item 18.
On January 5, 2024, the grand jury issued a second superseding indictment
adding Peter Gerace, Jr.; John Thomas Ermin; Michael Roncone; Frank Knight; Howard
Hinkle, Jr.; Cortnie Barber; Bernard Byrd III; and Scott Barnes as defendants.2 Docket
Item 24. The second superseding indictment included, among other things, charges of
conspiracy to obstruct justice, conspiracy to tamper with a witness, conspiracy to
retaliate against a witness, and distribution of fentanyl resulting in death. Id. Several
days later, the case was reassigned to this Court. Docket Item 26.
On February 23, 2024, Judge McCarthy held a status conference with all
counsel. See Docket Items 74 and 124. At the conference, Judge McCarthy said that
he wanted to set a deadline for the government to produce discovery, and he suggested
60 days. Docket Item 124 at 6. When the government requested an additional 30 days
due to the amount of discovery that it had to produce, id. at 6-7, Judge McCarthy asked
the government whether there was “a possibility of doing rolling production during the
90[-]day period,” id. at 10. The government said that it “certainly th[ought] so” and that it
“would be open to . . . providing on a rolling basis what’s available.” Id.
2 Barnes has since been severed from the other defendants. See Docket Item
272. His case is scheduled for trial in January 2025. See Docket Item 286.
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Judge McCarthy granted the government’s request for 90 days but told the
government that he wanted “the discovery to be produced sooner than that date as best
you can.” Id. at 12. In fact, he directed the government to produce discovery “[o]n a
rolling basis so that people can hit the ground running in terms of what they think they
need to do.” Id. Judge McCarthy thus ordered that “the production should occur on or
before May 23” and said that he then would “give the parties a brief period of time to
review what [they had] received” before they returned for another status conference on
June 3. Id. at 12-13.
On May 16, 2024—a week before the deadline of May 23, 2024—the
government’s Litigation Technology Specialist informed the prosecutors “that the
necessary hard drive storage capacity for the disclosure of the discovery production in
this case would be [three t]erabytes.” Docket Item 123-1 at ¶ 12. “The following
Monday, May 20, 2024, [the government] emailed counsel for each defendant in this
case with an attached letter informing them of the need for a [three-terabyte] hard drive
to be provided to the government in order for a copy of the discoverable material to be
produced to each defendant.” Id. at ¶ 13. The government also “informed counsel for
each defendant that the upload process itself would likely take between two and three
days to complete due to the size of the production.” Id. By the May 23 deadline, the
government had received hard drives from only three of the nine defendants. Id. at
¶ 14. It received three more by May 29, 2024. Id.
Later on May 29, with six hard drives in hand, the government emailed defense
counsel with a proposed protective order. Id. at ¶ 15. The proposed protective order,
among other things, prohibited “member[s] or associate[s] of” various motorcycle clubs
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from “serv[ing] as a defendant[’s] or counsel’s agent” and required defense counsel to
“provide a certification to the U.S. Attorney’s Office listing the name of each person on
the defense team who has been permitted to review the materials.” Docket Item 129-1
at 3, 6. The email stated as follows:
The government has drafted the attached protective order regarding the
discovery that will be provided in this case. 	The order would not prevent
you 	from 	reviewing 	discovery 	with 	your 	clients, 	or 	with
paralegals/investigators involved in the case. 	The discovery includes cell
phone extractions and other information that we believe should be protected
and should not be distributed unnecessarily to third parties.
I am hoping that this protective order can be instituted on consent without
the need for litigation. Does everyone agree with the terms of the proposed
protective order? If so, I will submit it to Judge McCarthy on consent. Once
the 	protective order 	is 	authorized 	by the Court, 	we 	will 	release 	the
discoverable material.
If we [cannot] reach an agreement on this protective order, the government
will file a motion with Judge McCarthy as soon as practicable to keep this
process moving forward. 	In order to keep this case moving forward
expeditiously, kindly reply to this email as quickly as possible. 	If you take
issue with a particular provision of the proposed protective order, please
reply-all to this email and perhaps we can work through any concerns short
of additional time-consuming litigation.
Docket Item 123-1 at ¶ 15. The email also noted that the government had received
hard drives from six defendants but not from the other three. Id.
On May 30, 2024, counsel for Roncone responded that he had no objections. Id.
at ¶ 18. The government emailed again on May 31 asking for responses. Id. at ¶ 19.
Counsel for Barnes responded that “the intent is to have a discussion when all are
together [at the status conference] on Monday.” Id. at ¶ 20.
The following Monday, June 3, the parties appeared before Judge McCarthy for
their scheduled status conference. Id. at ¶ 24. Defense counsel for Gerace, on behalf
of all the defendants, “objected to the fact that they had not yet received the
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discoverable material.” Id. Judge McCarthy ordered that the government’s production
of discovery be deemed “attorney’s eyes only” temporarily and that the parties continue
to confer in an attempt to reach agreement on a protective order. See Docket Item 122.
Judge McCarthy further ordered that by June 10, 2024, the parties either file a proposed
stipulated protective order or motions for the entry of a protective order. See id. Judge
McCarthy also gave the defendants until June 10 to “file motions directed to
consequences of the government’s failure to abide by [his] February 23, 2024 Text
Order 74 requiring the government to produce discovery to [the defendants] by no later
than May 23, 2024.” See id. He set a deadline of June 14 for responses to those
submissions and scheduled a status conference for June 27. See id. The government
moved to exclude Speedy Trial Act time until the June 27 conference, and Judge
McCarthy denied that request. Id.
Two days later, the government filed a motion to exclude Speedy Trial Act time
(thus stopping the Speedy Trial Act clock). Docket Item 123; see 18 U.S.C.
§ 3161(h)(1)(D) (automatically excluding “delay resulting from any pretrial motion, from
the filing of the motion through the conclusion of the hearing on, or other prompt
disposition of, such motion”). The defendants responded to that motion, Docket Items
126, 127, 130, 143, 148, and the parties filed briefs addressing the appropriate
sanctions, Docket Items 131, 132, 142.
Judge McCarthy held oral argument on July 22, 2024.3 See Docket Item 171.
The defendants asked for a hearing to “explore” whether the government’s failure to
3 The June 27 appearance was postponed to July 22. See Docket Items 152 and
159.
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produce discovery on time was “just negligence” or bad faith. See id. at 4-6. Counsel
for Gerace clarified that Gerace was not seeking “sanctions against any of these
prosecutors individually or against this trial team individually”; rather he was “ask[ing] for
sanctions against the U.S. Attorney’s Office.” Id. at 20.
Judge McCarthy said that he “ha[d] no reason to doubt [the prosecutors’] good
faith . . . but [that he was] looking also from the standpoint of the defendants, many of
whom have been sitting in custody for a considerable period of time.” Id. at 27. Thus,
Judge McCarthy said, “based on what [he had] heard thus far, [he did not] find that
there [wa]s any indication of bad faith that would warrant a hearing.” Id. at 27-28. He
did, however, “conclude, for many reasons, that the government’s conduct ha[d] been
unjustifiable and . . . warrant[ed] revisiting the Speedy Trial Act exclusion [that he had]
imposed on February 23[].” Id. at 28. Judge McCarthy then said that he would issue a
written decision. Id.
A week later, Judge McCarthy issued a decision and order. Docket Item 173.
He noted that “[d]uring oral argument a week ago, [he had] stated that although ‘the
government’s conduct ha[d] been unjustifiable[,’ he] found no ‘indication of bad faith.’”
Id. at 2 (quoting Docket Item 171 at 27-28). But “upon further review of the
government’s submission,” he said, he “now realize[d] that [he had] spoke[n] too soon.”
Id. More specifically, Judge McCarthy determined that “the government’s delay in
seeking a protective order was not merely an ‘oversight.’” Id. at 5. Rather, “although
[Judge McCarthy] had unequivocally ordered production of voluntary discovery by May
23, 2024, the government deliberately decided not to comply with that order.” Id. And
Judge McCarthy concluded that “[t]he government’s willful violation of [his] order
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constitute[d] bad faith.” Id. (citing Dow Chem. Pac. Ltd. v. Rascator Mar. S.A., 782 F.2d
329, 345 (2d Cir. 1986)).
Judge McCarthy also noted that “the sanction [that he] had intended to
recommend, namely vacating [his] ‘ends of justice’ exclusion of time from the Speedy
Trial Act . . . calendar (18 U.S.C. § 3161(h)(7)(A))[,] would have little impact[] since
[Speedy Trial Act] time was also automatically excluded under 18 U.S.C.
§ 3161(h)(1)(D) due to the pendency of various unresolved motions.” Docket Item 173
at 2. He therefore ordered briefing from the defendants to “propose an appropriate
sanction (or sanctions).” Id. at 6. The defendants submitted that briefing, Docket Items
181, 183, 184, 185, 186, 187, and 189; the government responded and moved for
reconsideration of Judge McCarthy’s bad faith finding, Docket 191; and the defendants
replied, Docket Items 193, 194, 195, 196, and 198.
After hearing argument, see Docket Item 199, Judge McCarthy issued a second
decision and order—this one denying the government’s motion for reconsideration and
imposing sanctions. Docket Item 200. More specifically, Judge McCarthy concluded
that missing the discovery deadline was “entirely without color” because “the
government simply chose not to [produce discovery by the deadline], absent a
protective order [that] it had not requested and [Judge McCarthy] had not ordered.”
Docket Item 200 at 2-3; see Dow Chem., 782 F.2d at 344. The government’s
noncompliance also was taken “for an [i]mproper [p]urpose,” Judge McCarthy
determined, because the government disobeyed the discovery order “in order to obtain
a tactical advantage, by limiting defendants’ access to and use of the information in a
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manner which [Judge McCarthy] had not ordered.” Docket Item 200 at 3-4; see Dow
Chem., 782 F.2d at 344.
Judge McCarthy then ordered a “three-pronged sanction”: (1) he precluded the
government from “comment[ing] on the defendants’ propos[ed]” protective order; (2) he
charged three months’ delay to the government for the purposes of any Sixth
Amendment speedy trial analysis; and (3) he disqualified the three government
prosecutors from the case. Id. at 5-8. The government appealed Judge McCarthy’s
decision and order, and this Court stayed Judge McCarthy’s order pending appeal to
this Court.4 See Docket Items 201, 202, and 230. Gogolack and Gerace also
appealed, arguing that the sanctions did not go far enough and that the indictment
should be dismissed. See Docket Items 228 and 231.
This Court heard oral argument and reserved decision. See Docket Item 273.
The Court also ordered both the government and the defendants to submit proposed
protective orders. See id. After reviewing the submissions, this Court entered a
protective order on November 7, 2024. See Docket Items 288 and 293. In the
meantime, the government filed a supplemental letter brief, Docket Item 277, to which
Ermin, Gogolack, and Gerace responded, Docket Items 285, 289, and 290.
For the reasons that follow, this Court vacates Judge McCarthy’s finding that the
government acted in bad faith and modifies the sanctions as explained below.
4 This Court subsequently modified its stay only with respect to the protective
order. Docket Item 233. More specifically, the Court ordered the defendants to submit
their proposed protective order to Judge McCarthy for consideration by September 27,
2024. Id. Judge McCarthy entered a protective order on October 9, 2024, Docket Item,
254, but the government then moved for a stay of that order, Docket Item 259, and this
Court granted that motion, Docket Item 261.
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DISCUSSION
“[A] district court may only ‘modify or set aside any part of [a magistrate judge’s
non-dispositive] order that is clearly erroneous or is contrary to law.’” United States v.
Aventura Techs., Inc., 607 F. Supp. 3d 278, 282 (E.D.N.Y. 2022) (quoting 28 U.S.C.
§ 636(b)(1)(A)); see Meyer Corp. U.S. v. Alfay Designs, Inc., 2017 WL 5515938, at *2
(E.D.N.Y. Mar. 6, 2017) (applying clear error standard to magistrate judge’s “decision to
impose sanctions based solely on the dishonest and bad faith conduct”). “This standard
is highly deferential and only permits reversal where the magistrate [judge] abused his
discretion.” Aventura Techs., 607 F. Supp. at 282 (quoting Mental Disability L. Clinic v.
Hogan, 739 F. Supp. 2d 201, 203 (E.D.N.Y. 2010)).
I. 	BAD FAITH FINDING
As Judge McCarthy observed, “[b]ad faith is not a concept that lends itself to
precise definition.” Docket Item 200 at 4 (quoting In re Syndicom Corp., 268 B.R. 26, 49
(Bankr. S.D.N.Y. 2001)). In the civil context, the Second Circuit has found that for a
court to find bad faith, there must “clear evidence that the challenged actions are
entirely without color and [are taken] for reasons of harassment or delay or for other
improper purposes.” Dow Chem., 782 F.2d at 344 (alteration in original) (citation and
internal quotation marks omitted). In the criminal context, the Second Circuit likewise
has stated that “[a]n act is ‘in bad faith’ if it is intentionally deceptive or dishonest”; the
court noted that “[t]he Oxford English Dictionary refers to ‘faithlessness’ and ‘treachery’
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in defining the term.” United States v. Bove, 888 F.3d 606, 608 (2d Cir. 2018). With
those guideposts in mind,5 this Court turns to Judge McCarthy’s findings.6
As explained above, Judge McCarthy first found that under the Dow Chemical
framework, the government’s actions were “entirely without color” because the
government made a deliberate choice to disobey his discovery deadline without seeking
leave of court. Docket Item 200 at 2-3 (quoting Dow Chem., 782 F.2d at 344). This
Court agrees that the government’s decision was indeed intentional and deliberate.
After extensive thought, however, this Court respectfully disagrees—even under
a clear error standard—that the government’s actions were taken in bad faith. Although
the government deliberately decided not to produce the documents by the deadline, it
did so because an order protecting the identity of witnesses and other sensitive
information was not in place. And while the government can be faulted for not ensuring
that such an order was entered before the deadline, that does not turn inattention and
negligence into bad faith.
Indeed, as this Court asked at oral argument, upon realizing that there was no
protective order in place when the deadline came and went, what was the government
to do? See Docket Item 270 at 13. In a case involving allegations that a witness was
murdered, producing sensitive discovery without a protective order in place was not a
5 Both Dow Chemical and Bove were in the context of an award of attorney’s
fees, which is not the posture of this case. Nonetheless, this Court finds the framework
in those cases instructive.
6 The defendants urge this Court to go beyond reviewing the findings that Judge
McCarthy made in his two decisions on sanctions and to review the entire history of this
case. This Court thinks that is beyond the scope of this appeal and confines its review
to Judge McCarthy’s findings on bad faith and sanctions.
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feasible option. So the reason the government deliberately and intentionally chose not
to abide by Judge McCarthy’s order was to protect witnesses and others in this case.
And this Court respectfully disagrees with Judge McCarthy that such a reason is
improper.
That is not to say that the government cannot be faulted. It can. The failure to
seek a protective order before the discovery deadline was—without question—a
significant oversight. Upon realizing its error, the government should have gone to
Judge McCarthy immediately. It should have approached defense counsel with
contrition, not a sense of entitlement.7 	And it should have accepted full responsibility
for its actions, rather than shifting blame.8 Especially in a case with defendants in
custody, the government simply must do better. But none of that crosses the threshold
of bad faith.
What is more, during much of the discovery period, the prosecutors handling this
case were involved in a complex and protracted trial before this Court. See United
States v. Joseph Bongiovanni, 19-cr-227. When that case ended in a mistrial in mid-
7 Indeed, this Court is quite troubled by the cavalier attitude with which the
government appears to have approached what it now admits was a massive oversight.
As one defendant observes, “the apologetic stance that [the] government now takes—
post sanctions—was not present in the immediate aftermath of its failures. . . . It
expressed none of its current humility in the time before Judge McCarthy imposed the
sanctions.” Docket Item 289 at 3. For example, nearly a week after the discovery
deadline when it occurred to the government that it had forgotten to obtain a protective
order, the government emailed defense counsel an extremely restrictive protective order
without apology—or even an acknowledgment of the delay it was causing. See Docket
Item 123-1 at 7.
8 For example, the government faulted some defendants for not promptly
providing hard drives. See Docket Item 123-1 at 7-9 & n.3. But those defendants who
had provided their hard drives could have received their discovery before the others, so
that explanation rings hollow.
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April, they immediately had to begin preparing to retry the case and briefing post-trial
motions—all while preparing for another lengthy trial that would follow Bongiovanni.
See United States v. Peter Gerace, Jr., 19-cr-227. Although that caseload does not
excuse their missing the deadline—especially in a large office where others could have
pinch hit—it does color this Court’s consideration of whether those prosecutors acted in
bad faith.
For all those reasons, this Court vacates Judge McCarthy’s finding of bad faith.
But that does not mean that sanctions are not appropriate. On the contrary, the
government’s negligence in overlooking the protective order until well after the eleventh
hour in a case in which it was abundantly clear that one was needed, coupled with the
government’s sense of entitlement, indeed warrants some sanction. This Court turns
now to the question of what sanction is appropriate.
II. 	SANCTIONS
A. 	Protective Order
The first sanction Judge McCarthy imposed was to preclude the government
from seeking a protective order. See Docket Item 200 at 5-6. Judge McCarthy
recognized, however, that “the privacy and other interests of third parties, who bear no
responsibility for the government’s misconduct,” required a protective order of some
sort. Id. at 6. So he solicited a joint proposal for a protective order from the defendants
but found that “[b]y its misconduct, the government has forfeited its right to comment on
the defendants’ proposal, without prejudice to its ability to suggest modifications as to
discovery produced at a later stage of the case.” Id.
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This Court finds that sanction to be inappropriate under the circumstances. As
Judge McCarthy recognized, there are interests in this case beyond the government’s
and the defendants’, and this Court has an obligation to protect those interests.
Precluding the government’s input toward fashioning a protective order undercuts that
obligation at the expense of innocent witnesses and third parties.
At oral argument, this Court therefore solicited protective order proposals from
both the defense and the government. See Docket Item 273. After carefully reviewing
those proposals, this Court found that the defendants’ proposal was not sufficient to
protect potential witnesses. The Court therefore issued a protective order that
incorporated some, but not all, of the government’s requested provisions. See Docket
Item 288. That order is now in place. Docket Item 293. This Court therefore vacates
the sanction preventing the government from commenting on the protective order.
B. 	Disqualification of Counsel
Perhaps the most significant sanction Judge McCarthy ordered was to disqualify
the three prosecutors assigned to this case and responsible for the discovery
oversights. Judge McCarthy acknowledged that all three are “hardworking and
dedicated attorneys”—a conclusion with which this Court wholeheartedly agrees—but
found that their willful violation of the discovery order warranted disqualification. Docket
Item 200 at 7. Moreover, in light of the prosecutors’ “failing to earlier request a
protective order or promptly produce rolling discovery (or earlier advise the court that
they could not),” Judge McCarthy found “that these attorneys are stretched too thin with
other commitments,” giving him “little confidence in their ability to devote the necessary
time and effort to this case going forward.” Id. at 8.
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This Court vacates that sanction for the same reasons that it overturned the
finding of bad faith. Without question, the government—and more specifically, one or
more of these three prosecutors—made the deliberate decision not to produce
discovery without a protective order. But as explained above, that decision was
justified, even if the timing and manner in which the government approached the issues
should have been far different.
Moreover, although this Court agrees with Judge McCarthy that these attorneys
are stretched quite thin having been on trial before this Court for nearly half of this year,
the Court shares the government’s concern about the separation of powers if this Court
were to mandate how the United States Attorney’s office staffs its cases. See Docket
Item 230 at 33. To be sure, the staffing appears to be insufficient, and that is something
that must change. But whether the better course is to add attorneys—either to this case
or to the other cases assigned to these three prosecutors—or to take these attorneys off
this case or other cases is not this Court’s call; rather, absent prosecutorial misconduct
or an ethics violation, it is a decision that should and will be left to the executive
branch. See United States v. Stewart, 294 F. Supp. 2d 490, 494 (S.D.N.Y. 2003)
(“Disqualification . . . is reserved for situations of prior representation, conflicts of
interest, prosecutorial misconduct, and other unethical attorney behavior.”). And what is
more, removing these attorneys and assigning new attorneys completely unfamiliar with
the case might well be counterproductive to the defendants’ interests by causing further
delays.
In sum, because this Court finds no bad faith, the government attorneys on this
case are not disqualified.
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C. 	Constitutional Speedy Trial Time
Finally, Judge McCarthy held that three months’ delay for the purposes of the
Sixth Amendment speedy trial right should be charged to the government. Docket Item
200 at 6. At oral argument, this Court suggested that perhaps five months should be
charged to the government because of the additional delay caused by the appeal of
Judge McCarthy’s order. See Docket Item 270 at 53.
Following oral argument, the government wrote a letter to the Court stating that
“given the unusual circumstances of this case, it would agree to waive its challenge to
the appropriateness of [this Court’s charging five months’ constitutional speedy trial
time], for this case alone.” Docket Item 277 at 1. The government added that “[i]n
waiving its current challenge to this type of sanction for this case, [it] is endeavoring to
acknowledge the concerns raised by the Magistrate Court, and this Court’s observations
during oral argument that twelve days of Speedy Trial Act time may be impossible to
impose because certain motions were pending that would exclude Speedy Trial Act time
by operation of law.” Id.
Gogolack counters that “[t]he government’s proposal takes a natural
consequence of its action and calls it a sanction.” Docket Item 289 at 1; see id.
(“Whether it is this [C]ourt or an appellate court, or both, whichever body decides this
future hypothetical motion, should one be filed, will have to decide whether certain
periods of delay were neutral, or attributable to one side or the other. That is an
analysis that will invariably consider the government’s actions in withholding discovery,
violating a court order, and insisting on an untenable protective order. So considered,
there is little room to doubt that this hypothetical court deciding this hypothetical motion
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will decide that the time should be attributable to the government.”). This Court
disagrees for a few reasons.
First, despite overturning Judge McCarthy’s finding that the government acted in
bad faith, this Court is charging the government with the time it took to litigate its appeal.
One could argue that faced with the bad faith finding, disqualification, and inability to
weigh in on the protective order, the government had little choice but to appeal. And
that is probably correct. So a court later looking at this in hindsight might well find that
the appeal period was not the government’s fault. This Court finds, however, that the
entire period is chargeable to the government as a sanction. Put another way, although
this Court is reversing Judge McCarthy, it can see why Judge McCarthy did what he did.
And the consequence of that—which was a direct result of the government’s actions—
was a five-month period of delay.
Second, deciding this issue now makes it the law of the case. The government
will not be able to argue in this Court that this time should not weigh against it. That
should encourage the government to learn from its mistakes and move this case along
without delay on its part. This time will be counted against it, full stop.
Finally, although the defendants correctly note that the government’s tune has
changed dramatically since the sanctions order was issued, its willingness not to
oppose this sanction suggests that it now understands the seriousness of its errors.
That, too, cuts in favor of the sanction imposed.
For all those reasons, this Court finds that charging five months’ time to the
government for the purposes of the defendants’ Sixth Amendment speedy trial
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calculation is an appropriate sanction.9 It may not be perfect, but in light of all the
circumstances, this Court finds it is the best solution available at this time.10
CONCLUSION
This is the second time this year that this Court has been tasked with determining
whether lawyers connected to this and a related case should be disqualified for actions
allegedly taken in bad faith. See United States v. Gerace, --- F.Supp.3d ---, 2024 WL
1793022 (W.D.N.Y. Apr. 25, 2024). Both times, seeking the opponent’s disqualification
boiled down to failing to appreciate the perspective of the other side. As this Court
wrote in Gerace, defense “[l]awyers should not have to worry that their objectively
legitimate strategic decisions will lead to a criminal investigation whenever the
government perceives a nefarious motive.” Id. at ---, *21. But by the same token,
prosecutors should not have to worry that an honest mistake, even if significant, will be
used to brand them as treacherous.
It is easy for lawyers zealously representing their clients to develop tunnel
vision—especially in a case like this where the stakes are enormous for both sides. But
it is critical not to let that view lead both sides to assume the worst of each other. That
9 In light of this Court’s finding that the government’s actions do not constitute
bad faith, it finds that dismissing the indictment—as the defendants request—is not
warranted.
10 This decision and order is without prejudice to the defendants’ arguing that the
government should be precluded from using certain evidence as a sanction. This Court
is not in a position to evaluate such an argument at this time without the specifics of
what evidence the defense seeks to preclude and why the late production warrants that
sanction.
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the government threw the first punch in this fight may well explain the defense’s
counterpunch here. But that does not entitle them to win this round.
With all that in mind, and for the reasons described above, this Court vacates
Judge McCarthy’s decision and order, Docket Item 200, and charges five months’ time
to the government for the purposes of a Sixth Amendment speedy trial analysis as a
sanction.
SO ORDERED.
Dated: 	November 21, 2024
Buffalo, New York
/s/ Lawrence J. Vilardo
LAWRENCE J. VILARDO
UNITED STATES DISTRICT JUDGE
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