USA v. Trotter

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
_________________________________________
UNITED STATES OF AMERICA,
REPORT,
RECOMMENDATION
AND ORDER
v.
24-CR-0060(LJV)(JJM)
GREGORY TROTTER,
Defendant.
_________________________________________
Defendant Gregory Trotter is charged in a one-count Indictment [14]1 with
making false statements in violation of 18 U.S.C. §1001(a)(2). Trotter, a detective with the
Amherst Police Department, allegedly made false statements to agents of the Federal Bureau of
Investigation (“FBI”) during a September 30, 2022 interview concerning his relationship with
Peter Gerace, Jr. and his involvement into a criminal investigation instituted by Gerace. Before
the court are the remaining portions of Trotter’s omnibus pretrial motion [24],2 as well as the
government’s cross-motion for reciprocal discovery. See Government’s Response [25] at 21-22.
Having considered the parties’ briefing [24-26] and heard oral argument on
August 20, 2024 [27], for the following reasons the government’s cross-motion is granted,
Trotter’s motions for non-dispositive relief are denied, and I recommend that Trotter’s motion be
to dismiss the Indictment also be denied.
1 	Bracketed references are to CM/ECF docket entries, and page references are to CM/ECF
pagination.
2 	In an August 17, 2024 e-mail with my chambers, Trotter’s counsel confirmed that the issues
requiring a decision included those identified in Trotter’s Reply [26], as well as his motions for a bill of
particulars and to inspect grand jury minutes. 	I have treated all other issue raised in the motion [24] as
resolved, without prejudice to renewal.
Case 1:24-cr-00060-LJV-JJM Document 28 Filed 09/05/24 Page 1 of 16

-2-
BACKGROUND
According to the Indictment, between about February 2017 and April 2019,
Trotter “had contact, both professional and personal”, with Gerace. [14], ¶2. In March 2019,
Gerace filed a police report with the Amherst Police Department concerning the alleged theft of
a Rolex watch. Id., ¶3. Allegedly, within hours of filing that report, Gerace texted Trotter on his
personal cell phone, informing him that the report had been filed and asking if Trotter had seen
it. Id., ¶4. Throughout Trotter’s investigation of the theft, he allegedly used his personal cell
phone to exchange text messages with Gerace concerning the status of the investigation. Id., ¶5.
On April 9, 2019, Trotter participated in the arrest of an individual in connection with the
alleged theft, and allegedly exchanged text messages with Gerace concerning the arrest,
including Trotter being told by Gerace where the arrestee could be located. Id., ¶6.
In 2021 Gerace was indicted on federal charges unrelated to the theft of the Rolex
watch or the Amherst Police Department’s investigation into its theft. Id., ¶7.3 On September
30, 2022, the FBI interviewed Trotter, during which he allegedly:
“denied having contact with Gerace after January 2017; stated that his involvement
in the investigation into the theft of the Rolex watch was limited to taking a
statement from Gerace; and stated that Gerace had never reached out to him or
contacted him regarding the investigation”.
Id., ¶9.
3 	Gerace is currently a defendant in several federal indictments: 19-CR-0227; 23-CR-0060; and 23-
CR-0099.
Case 1:24-cr-00060-LJV-JJM Document 28 Filed 09/05/24 Page 2 of 16

-3-
DISCUSSION
A. 	Trotter’s Motions
1. 	Dismiss the Indictment for Outrageous Government Conduct
“The concept of fairness embodied in the Fifth Amendment due process guarantee
is violated by government action that is fundamentally unfair or shocking to our traditional sense
of justice . . . or conduct that is ‘so outrageous’ that common notions of fairness and decency
would be offended were judicial processes invoked to obtain a conviction against the accused.”
United States v. Schmidt, 105 F.3d 82, 91 (2d Cir. 1997). “Especially in view of the courts’
well-established deference to the Government’s choice of investigatory methods . . . the burden
of establishing outrageous investigatory conduct is very heavy.” United States v. Rahman, 189
F.3d 88, 131 (2d Cir. 1999).
Such claims are “rarely sustained, and generally only if the government was
involved with the underlying criminal activity by means of coercion or violation of the
defendant’s person”. United States v. Cacace, 796 F.3d 176, 192-93 (2d Cir. 2015). See also
United States v. Williams, 372 F.3d 96, 112 (2d Cir. 2004) (“a due process challenge to an
indictment based on outrageous government conduct has almost never succeeded”); United
States v. Caraher, 973 F.3d 57, 63 (2d Cir. 2020) (“[i]n theory, government involvement in a
crime may “become so excessive that it violates due process and requires dismissal of charges
against the defendant even if the defendant was not entrapped”).
However, the fact that a defendant may face an uphill battle in proving outrageous
government conduct does not allow me to ignore the issue altogether. “[A] claim that the
government has acted outrageously is taken seriously because ensuring that the government does
Case 1:24-cr-00060-LJV-JJM Document 28 Filed 09/05/24 Page 3 of 16

-4-
not trample in an unconscionable manner on individual dignity is a bed-rock duty of judicial
officers. Sometimes the government’s involvement in manufacturing crime is demonstrably
outrageous, and in those cases, the convictions of targeted defendants have been set aside.”
Schmidt, 105 F.3d at 91.
The allegations presented by Trotter do not demonstrate misconduct, much less
outrageous misconduct. He does not claim that the FBI interview was custodial or that he was
threatened or coerced during the course of the interview. His claims that the agents “engaged in
a game of ‘gotcha’” and failed to “give him an opportunity to correct or explain any apparent
misstatements” may be arguments to raise at trial (Thompson Affirmation [24], ¶¶24, 25), but
fail to demonstrate that the noncustodial interview was outside the bounds of permissible
investigatory procedures. See United States v. Colon, 71 F. Supp. 3d 269, 277 (D. Conn. 2014)
(“the government’s exploitation of a suspect’s vulnerability or susceptibility to commit a crime is
not the equivalent of actual coercion”). For instance, while Trotter complains that he was not
advised at the outset of the interview that false statements could be charged as a crime
(Thompson Affirmation [26], ¶8), Trotter acknowledged at oral argument that no such warning
was required.
While “it may be likely that [defendant] would not face the present charges if the
FBI agents did not interview him, the interview itself did not constitute government overreach or
intolerable conduct”. United States v. Brennan, 2021 WL 2206308, *3 (E.D. Pa. 2021). “The
noncustodial interview was within the bounds of standard investigatory procedures and was a
legitimate forum to give rise to potential § 1001 offenses.” Id.
Case 1:24-cr-00060-LJV-JJM Document 28 Filed 09/05/24 Page 4 of 16

-5-
Trotter also contends that this “prosecution was manufactured for the specific
purpose of preventing [him] from being called as a witness by . . . Gerace” in his criminal
prosecution. Thompson Affirmation [24], ¶12. Specifically, he points to the fact that
approximately five months after being named on Gerace’s witness list, he was charged by
Criminal Complaint. Id., ¶¶16-18. However, “[a] claim of outrageous government conduct is a
claim that government conduct in securing an indictment was so shocking to due process values
that the indictment must be dismissed”. United States v. Dominguez-Caicedo, 40 F.4th 938, 948–
49 (9th Cir. 2022), cert. denied, 143 S. Ct. 2615 (2023) (emphasis in original). See also United
States v. Lacey, 86 F.3d 956, 963 (10th Cir. 1996) (“[t]he outrageous conduct defense . . .
generally prevents the government from prosecuting a crime developed through egregious
investigatory tactics”). The prosecutor’s motivation for bringing charges has nothing do with the
government’s conduct in securing the Indictment against Trotter. Although challenges to
prosecutorial charging decisions may be brought on selective or vindictive prosecution grounds,
Trotter has not moved for such relief. See United States v. Miller, 2014 WL 4184392, *2
(N.D.W. Va. 2014) (“a prosecutor’s charging decision is presumptively lawful”, and this can
only be overcome by a showing of selective or vindictive prosecution).
Finally, Trotter argues that none of the discovery produced thus far supports “the
allegation that . . . [his] alleged misstatements . . . were ‘material’”. Thompson Affirmation [24],
¶28. Even if this were a proper basis for an outrageous government conduct claim, summary
judgment generally “does not exist in federal criminal procedure”, and “the sufficiency of the
evidence is not appropriately addressed . . . pretrial”. United States v. Sampson, 898 F.3d 270,
282 (2d Cir. 2018). Therefore, I recommend that this motion be denied.
Case 1:24-cr-00060-LJV-JJM Document 28 Filed 09/05/24 Page 5 of 16

-6-
2. 	Bill of Particulars
Fed. R. Crim. P. (“Rule”) 7(f) “permits a defendant to seek a bill of particulars in
order to identify with sufficient particularity the nature of the charge pending against him,
thereby enabling defendant to prepare for trial, to prevent surprise, and to interpose a plea of
double jeopardy should he be prosecuted a second time for the same offense”. United States v.
Bortnovsky, 820 F.2d 572, 574 (2d Cir. 1987).4 “A bill of particulars is required only where the
charges of the indictment are so general that they do not advise the defendant of the specific acts
of which he is accused.” United States v. Walsh, 194 F.3d 37, 47 (2d Cir. 1999). “[T]he burden
is upon defendants to show that non-disclosure of the requested particulars would lead to
prejudicial surprise at trial or would adversely affect defendants’ rights”. United States v. Duarte,
2014 WL 29366, *1 (W.D.N.Y. 2014).
“In deciding a motion for a bill of particulars, the important question is whether
the information sought is necessary, not whether it is helpful.” United States v. Conley, 2002 WL
252766, *4 (S.D.N.Y. 2002). A bill of particulars “should not function to disclose evidence,
witnesses, and legal theories to be offered by the Government at trial or as a general investigative
tool for the defense.” United States v. Henry, 861 F.Supp.1190, 1197 (S.D.N.Y. 1994).
The court “has the discretion to deny a bill of particulars if the information sought
by defendant is provided in the indictment or in some acceptable alternate form.” United States
v. Barnes, 158 F.3d 662, 665 (2d Cir. 1998). See United States v. Messina, 2012 WL 463973,
*10 (E.D.N.Y. 2012) (“[i]n determining whether a defendant has shown such necessity, the trial
4 	Some courts have questioned the double jeopardy justification for granting particularization. See,
e.g., United States v. Payden, 613 F.Supp. 800, 816 n.16 (S.D.N.Y. 1985).
Case 1:24-cr-00060-LJV-JJM Document 28 Filed 09/05/24 Page 6 of 16

-7-
court must examine the totality of the information available to the defendant, including the
indictment and general pre-trial discovery”). “The necessity of a bill of particulars depends on
the nature of the charged crime.” United States v. Meregildo, 2012 WL 3834732, *5 (S.D.N.Y.
2012).
Trotter seeks the following particularization:
“a. each statement by Detective Trotter where the government contends, as alleged
in paragraph 9 of the indictment, that he ‘denied having contact with Gerace after
January 2017’”;
“b. each statement by Detective Trotter where the government contends, as alleged
in paragraph 9 of the indictment, that he ‘stated that his involvement in the
investigation into the theft of the Rolex watch was limited to taking a statement
from Gerace’”;
“c. each statement by Detective Trotter in which the government contends, as
alleged in paragraph 9 of the indictment, that he ‘stated that Gerace had never
reached out to him or contacted him regarding the investigation’ of the Rolex watch
theft”; and
“d. each statement or other information offered by Detective Trotter supporting its
claim he made the above statements with knowledge of their falsity at the time they
were made”.
Thompson Affirmation [24], ¶51.
Characterizing it as a “broadly worded” Indictment, Trotter argues that this
particularization is required in order to prevent the government from expanding “the scope of the
proof beyond the charges brought by the grand jury” or from shifting “the theory of liability from
that upon which the grand jury voted”. Thompson Affirmation [24], ¶¶44-47, 49. These
arguments are belied by the Indictment, which narrowly identifies the three alleged knowingly
false statements that Trotter made during his September 30, 2022 interview, leaving little room
for any variance at trial. See Indictment [14], ¶9.
Case 1:24-cr-00060-LJV-JJM Document 28 Filed 09/05/24 Page 7 of 16

-8-
The false statement count against Trotter is not complex. When the specificity of
the Indictment is coupled with the fact that Trotter’s interview was recorded and he has been
provided with his communications with Gerace, further particularization is unnecessary to
prevent any prejudicial surprise at trial or adversely affect his rights. To the extent that Trotter
harbors any uncertainty about the allegations or evidence that he will face at trial, he has the
benefit of the detailed Affidavit of FBI Special Agent Jason Kammeraad submitted in support of
the Criminal Complaint [1], which pairs the supporting electronic evidence to the alleged false
statements. Therefore, this motion is denied.
3. 	Inspection of Grand Jury Minutes
Trotter asks that his request for the disclosure of grand jury minutes be read in
conjunction with his motions to dismiss based on outrageous government conduct and for a bill
of particulars. See Thompson Affirmation [24], ¶33. He contends that these motions, when read
together, demonstrate the “lack of specificity of the charges and [his] inability to determine what
facts the grand jury found when returning the indictment. Id. He further contends that disclosure
of the grand jury minutes is necessary “to limit the proof at trial to only that relevant to the
offense voted by the grand jury”. Id.
While “grand jury proceedings are subject to strict secrecy requirements”, United
States v. R. Enterprises, Inc., 498 U.S. 292, 299 (1991), that secrecy is not absolute. Rule
6(e)(3)(E)(ii) permits disclosure of grand jury proceedings “at the request of a defendant who
shows that a ground may exist to dismiss the indictment because of a matter that occurred before
the grand jury”. Therefore, “the standard for dismissing an indictment is relevant to the standard
for disclosure of grand jury materials”. United States v. Way, 2015 WL 8780540, *4 (E.D. Cal.
Case 1:24-cr-00060-LJV-JJM Document 28 Filed 09/05/24 Page 8 of 16

-9-
2015). “[A]n indictment valid on its face is not subject to challenge on the ground that the grand
jury acted on the basis of inadequate or incompetent evidence.” United States v. Calandra, 414
U.S. 338, 345 (1974). However, courts may “dismiss an indictment because of misconduct
before the grand jury, at least where that misconduct amounts to a violation of one of those few,
clear rules which were carefully drafted and approved by this Court and by Congress to ensure
the integrity of the grand jury’s functions”. United States v. Williams, 504 U.S. 36, 46 (1992).
Trotter acknowledges that these motions “are not often granted”. Thompson
Affirmation [24], ¶32. Since “a presumption of regularity attaches to grand jury proceedings”,
United States v. Leung, 40 F.3d 577, 581 (2d Cir. 1994), a defendant has the “burden of asserting
that particularized and factually based grounds exist to support the proposition that irregularities
in the grand jury proceedings may create a basis for dismissal of the indictment”. United States
v. Abcasis, 785 F. Supp. 1113, 1119 (E.D.N.Y. 1992). See also United States v. Torres, 901 F.2d
205, 233 (2d Cir. 1990), abrogated on other grounds by United States v. Marcus, 628 F.3d 36 (2d
Cir. 2010) (disclosure “is rarely permitted without specific factual allegations of government
misconduct”); Leung, 40 F.3d at 582 (“[a] review of grand jury minutes should not be permitted
without concrete allegations of Government misconduct”).
With these principles in mind, Trotter fails to establish his entitlement to
disclosure of the grand jury minutes. None of his arguments point to any misconduct before, or
misuse of, the grand jury, foreclosing his entitlement to production of the grand jury minutes. See
Leung, 40 F.3d at 582 (“[a] review of grand jury minutes should not be permitted without
concrete allegations of Government misconduct”); United States v. Padua, 2021 WL 2703777,
Case 1:24-cr-00060-LJV-JJM Document 28 Filed 09/05/24 Page 9 of 16

-10-
*5 (W.D.N.Y. 2021) (“defendant is not entitled to inspect grand jury minutes and evidence
without producing ‘concrete allegations of Government misconduct’”).
Trotter argues that during the FBI interview he made certain statements
inconsistent with one of the Indictment’s alleged misrepresentations. See Thompson Affirmation
[24], ¶34. He offers this as the lone example of why the court should “examine the grand jury
minutes to determine what proof was offered at the grand jury” to support the Indictment’s
allegation. Id. However, the mere desire to confirm the sufficiency of the evidence supporting a
charge falls well short of the particularized showing of need to warrant disclosure of the grand
jury minutes. See Calandra, 414 U.S. at 345. See also United States v. Copen, 378 F. Supp. 99,
102 (S.D.N.Y. 1974) (“[t]he law is clear . . . that absent a showing a particularized need, the
Court need not review grand jury minutes for the purpose of determining whether there was
sufficient evidence to file an indictment or whether such indictment is based upon incompetent
evidence”). 	In fact, Trotter acknowledges the “near absence of relief for the accused for
indictments returned on insufficient evidence”. Thompson Affirmation [24], ¶46. Therefore,
this motion is denied.
4. 	Discovery
“Rights of discovery in criminal cases, unlike in civil cases, are severely
circumscribed.” BCCI Holdings (Luxembourg), Societe Anonyme v. Pharaon, 1995 WL 489426,
*4 (S.D.N.Y. 1995). Apart from the government’s Brady, 5 Giglio,6 and Jencks Act (18 U.S.C.
5 	Brady v. Maryland, 373 U.S. 83 (1963).
6 	Giglio v. United States, 405 U.S. 150 (1972).
Case 1:24-cr-00060-LJV-JJM Document 28 Filed 09/05/24 Page 10 of 16

-11-
§3500) obligations, Rule 16 is “the sole authorized vehicle under the Federal Rules of Criminal
Procedure for pre-trial discovery in criminal cases.” United States v. Louis, 2005 WL 180885, *2
(S.D.N.Y. 2005).
Where, as here (government’s response [25] at 16), the government “makes good
faith representations that it is complying with Rule 16, and that it will continue to do so, courts in
this Circuit deny . . . discovery requests”. United States v. Zelaya-Romero, 2018 WL 1033235,
*3 (S.D.N.Y. 2018). Therefore, I will address only the specific items of discovery identified by
Trotter.
First, Trotter seeks the “full digital extraction of Mr. Gerace’s phone which was
seized by the government” because it may include “evidence that other law enforcement officers
- not [Trotter] - provided law enforcement sensitive information to Mr. Gerace”. Thompson
Affirmation [24], ¶¶55-56. However, Trotter acknowledges that “the full extraction of Mr.
Gerace’s phone[ ] may not be relevant to the allegations in the indictment, unless the government
intends to argue that [he] . . . provided law enforcement sensitive information to Mr. Gerace”.
Id., ¶56 (emphasis added). Based on that acknowledgment and the government’s representation
at oral argument that it “does not intend to argue that the [Trotter] provided law enforcement
sensitive information to Gerace”,7 I deny this portion of the motion as moot.
Trotter next seeks copies of all records obtained from the December 19, 2023
grand jury subpoena [24-1] to the Amherst Police Department. See Thompson Affirmation [24],
7 	This is my unofficial transcription from the digital audio recording of the August 20, 2024 oral
argument.
Case 1:24-cr-00060-LJV-JJM Document 28 Filed 09/05/24 Page 11 of 16

-12-
¶57. According to Trotter, “it appears that excerpts, but not all of the subpoenaed records in the
government’s possession have been provided to the defense”. Id.
The government responds that it has “produced as discovery all the records that it received from
the Amherst Police Department in response to the referenced subpoena”. Government’s
Response [25] at 18 (emphasis added). Without more, I have no reason to doubt the government
at this time. See United States v. Johns, 336 F.Supp.2d 411, 424 (M.D. Pa. 2004) (“[t]he court is
entitled to rely on the representations of counsel, as officers of the court”). Therefore, this
portion of the motion is denied without prejudice.
Finally, Trotter “requests an order directing the government to provide the name
and last known address of each prospective government witness”. Thompson Affirmation [24],
¶58. “Although there is no general right to pretrial disclosure of the government’s witness
list, . . . federal courts have held that Rule 16 does not preclude the exercise of their inherent
authority to require pretrial disclosure of witness identities where such disclosure is justified by
the circumstances of the particular case.” United States v. Barrett, 153 F. Supp. 3d 552, 575–76
(E.D.N.Y. 2015). Notwithstanding the existence of such discretion to order the pretrial
production of a witness list, Trotter offers no reason why it should be exercised at this time.
Therefore, the request is denied without prejudice.
5. 	Strike Surplusage
Trotter moves to dismiss paragraphs two through eight from the Indictment as
surplusage on the ground that they “do not allege any improper or criminal conduct”, “are
irrelevant to the alleged false statements”, and “are merely ‘inflammatory and prejudicial’”.
Thompson Affirmation [24] ¶¶4, 8.
Case 1:24-cr-00060-LJV-JJM Document 28 Filed 09/05/24 Page 12 of 16

-13-
Pursuant to Rule 7(d) the court may strike surplusage from the indictment.
“Motions to strike surplusage from an indictment will be granted only where the challenged
allegations are not relevant to the crime charged and are inflammatory and prejudicial. If
evidence of the allegation is admissible and relevant to the charge, then regardless of how
prejudicial the language is, it may not be stricken.” United States v. Scarpa, 913 F.2d 993, 1013
(2d Cir. 1990). Since such motions are held to an “exacting standard” (id.), they “are rarely
granted”. United States v. Jimenez, 824 F.Supp. 351, 369, 370 (S.D.N.Y. 1993).
Trotter’s motion falls short of meeting this exacting standard. The Indictment
alleges that Trotter’s false statements and representations were that he “denied having contact
with Gerace after January 2017; stated that his involvement in the investigation into the theft of
the Rolex watch was limited to taking a statement from Gerace; and stated that Gerace had never
reached out to him or contacted him regarding the investigation”. Indictment [14], ¶9.
Many of the paragraphs that Trotter seeks to strike contain allegations directly
relevant to the alleged falsity of Trotter’s statements, including: that “[b]etween . . . February
2017, and in or about April 2019, [Trotter] had contact, both professional and personal, with . . .
Gerace” ([14], ¶2); that “[w]ithin hours of filing the police report”, Gerace texted Trotter on
Trotter’s “personal cell phone informing [Trotter] that Gerace had filed the police report and
asking [Trotter] if he had seen it” (id., ¶4); that during the course of the investigation into the
stolen Rolex watch, Trotter “used his personal cell phone to exchange text messages with Gerace
regarding the status of the investigation” (id., ¶5); and that Trotter and Gerace “exchanged text
messages regarding Individual 1 and the arrest of Individual 1” (id., ¶6).
Other paragraphs at issue merely provide benign background information.
Case 1:24-cr-00060-LJV-JJM Document 28 Filed 09/05/24 Page 13 of 16

-14-
For instance, paragraph three alleges that Gerace filed his report concerning the stolen Rolex
watch with the Amherst Police Department, and paragraph eight alleges when Trotter was
interviewed by the FBI. 	Inclusion of such allegations is permissible. See United States v.
Yeaman, 987 F. Supp. 373, 376-77 (E.D. Pa. 1997) (“[l]anguage is properly included in an
indictment if it pertains to matters which the government will prove at trial. These matters need
not be essential elements of the offense if they . . . contain relevant background information”);
United States v. Durham, 2013 WL 1791066, *2 (W.D.N.C. 2013) (“background information . . .
is permissible because it is relevant to the charges at issue”); United States v. Hill, 799 F. Supp.
86, 89 (D. Kan. 1992) (“defendant moves to strike in their entirety several introductory
paragraphs . . . which provide background information and set forth the alleged conduct of the
defendant that constitutes . . . false statements to the FDIC. Clearly the alleged conduct is
relevant to the counts with which defendant is charged and should not be stricken from the
indictment”).
In any event, even accepting Trotter’s arguments, “it is the trial court that will
determine whether the Indictment is submitted to the jury, when it is submitted, and in what
form”. United States v. Gerace, 2022 WL 17478270, *9 (W.D.N.Y. 2022), adopted, 2022 WL
17139489 (W.D.N.Y. 2022). Therefore, the motion is denied, without prejudice to renewal
before the trial judge.
6. 	Reservation of Rights to File Additional Motions
Trotter requests “an order reserving his right to file additional motions” based on
further productions of discovery or notifications by the government of its intent to use evidence
at trial. Thompson Affirmation [24], ¶80. This motion is denied as premature. Trotter’s ability
Case 1:24-cr-00060-LJV-JJM Document 28 Filed 09/05/24 Page 14 of 16

-15-
file any additional pretrial motions remains governed by Rule 12(c)(3), which requires a showing
of “good cause” for why such motions were not timely asserted.
B. 	The Government’s Cross-Motion for Reciprocal Discovery
The government cross-moves for the production of reciprocal discovery pursuant
to Rule 16(b). See Government’s Response [25] at 21-22. “Rule 16 . . . imposes reciprocal
discovery obligations on defendants.” United States v. Smith, 985 F.Supp.2d 506, 522 (S.D.N.Y.
2013). Trotter has not opposed this request. Therefore, it is granted.
The government also asks that “upon the District Court’s setting a trial date and
accompanying Scheduling Order . . . the defendant provide a summary of any testimony that the
defendant intends to use under Rule 702, 703, or 705 of the Federal Rules of Evidence”.
Government’s Response [25] at 22. Since Trotter has also not opposed this request, it is granted.
CONCLUSION
For these reasons, the government’s cross-motion (Government’s Response [25]
at 21-22) is granted, Trotter’s non-dispositive pretrial motions [24] are denied, and I
recommend that Trotter’s motion to dismiss the Indictment be denied.
Unless otherwise ordered by Judge Vilardo, any objections to this Report,
Recommendation and Order must be filed with the clerk of this court by September 19, 2024.
Any requests for extension of this deadline must be made to Judge Vilardo. A party who “fails
to object timely . . . waives any right to further judicial review of [this] decision”. Wesolek v.
Canadair Ltd., 838 F. 2d 55, 58 (2d Cir. 1988); Thomas v. Arn, 474 U.S. 140, 155 (1985).
Case 1:24-cr-00060-LJV-JJM Document 28 Filed 09/05/24 Page 15 of 16

-16-
Moreover, the district judge 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. Patterson-Leitch Co. v. Massachusetts Municipal
Wholesale Electric Co., 840 F. 2d 985, 990-91 (1st Cir. 1988).
The parties are reminded that, pursuant to Rule 59(c)(2) of this Court’s Local
Rules of Criminal Procedure, “[w]ritten 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”, and pursuant to Local Rule 59(c)(3), the
objections must include “a written statement either certifying that the objections do not raise new
legal/factual arguments, or identifying the new arguments and explaining why they were not
raised to the Magistrate Judge”. Failure to comply with these provisions may result in the
district judge’s refusal to consider the objection.
Dated: September 5, 2024
/s/Jeremiah J. McCarthy
JEREMIAH J. MCCARTHY
United States Magistrate Judge
Case 1:24-cr-00060-LJV-JJM Document 28 Filed 09/05/24 Page 16 of 16