USA v. Trotter

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
UNITED STATES OF AMERICA,
v.
GREGORY TROTTER,
Defendant.
24-CR-60-LJV-JJM
DECISION & ORDER
The defendant, Gregory Trotter, was charged in a one-count indictment with
making a false statement to an agency of the United States. Docket Item 14. The case
was referred to United States Magistrate Judge Jeremiah J. McCarthy for all
proceedings under 28 U.S.C. § 636(b)(1)(A) and (B). Docket Item 16.
Several months later, Trotter filed pretrial motions, including a motion to dismiss
and motions for a bill of particulars and to inspect the grand jury minutes. Docket Item
24. Judge McCarthy issued a Report, Recommendation, and Order (“RR&O”) denying
Trotter’s motions for a bill of particulars and to inspect the grand jury minutes and
recommending that this Court deny Trotter’s motion to dismiss. Docket Item 28. After
Trotter objected to the RR&O, Docket Item 32, and the government responded, Docket
Item 33, this Court heard oral argument and reserved decision, see Docket Item 37.
A district court may accept, reject, or modify the findings or recommendations of
a magistrate judge on a dispositive order. 28 U.S.C. § 636(b)(1); Fed. R. Crim. P.
59(b)(3). The court must review de novo those portions of a magistrate judge’s
recommendation to which a party objects. 28 U.S.C. § 636(b)(1); Fed. R. Crim. P.
59(b)(3).
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With respect to a non-dispositive order, however, “a district court may only
‘modify or set aside any part of the 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)).
This Court has carefully and thoroughly reviewed the RR&O, the objection, the
response, and the materials submitted to Judge McCarthy. Based on that review, the
Court accepts and adopts Judge McCarthy’s recommendation to deny Trotter’s motion
to dismiss and affirms Judge McCarthy’s order denying Trotter’s requests for a bill of
particulars and to inspect the grand jury minutes.
DISCUSSION
The Court assumes the reader’s familiarity with the underlying facts and Judge
McCarthy’s analysis in the RR&O. See Docket Item 28.
I. 	MOTION TO DISMISS
Trotter moves to dismiss the indictment due to “outrageous government
misconduct.” Docked Item 24 at ¶ 10. More specifically, Trotter says that his
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“prosecution was manufactured for the specific purpose of preventing [him] from being
called as a witness by [Peter] Gerace.” Id. at ¶ 12.
Judge McCarthy rejected this argument, finding that “[t]he allegations presented
by Trotter do not demonstrate misconduct, much less outrageous misconduct.” Docket
Item 28 at 4. Judge McCarthy noted that “[t]he prosecutor’s motivation for bringing
charges has nothing do with the government’s conduct in securing the [i]ndictment
against Trotter.” Id. at 5. Judge McCarthy observed that “[a]lthough challenges to
prosecutorial charging decisions may be brought on selective or vindictive prosecution
grounds, Trotter has not moved for such relief.” Id. at 5. Finally, Judge McCarthy
added, “summary judgment generally ‘does not exist in federal criminal procedure[,’]
and ‘the sufficiency of the evidence is not appropriately addressed . . . pretrial,’” so
Trotter’s claim that his alleged misstatements were not “material” failed as well. Id.
(quoting United States v. Sampson, 898 F.3d 270, 282 (2d Cir. 2018)).
This Court agrees with Judge McCarthy. The crux of Trotter’s argument seems
to be his speculation—based on the timing of his indictment and the trial in United
States v. Peter Gerace, Jr., 19-cr-227 and 23-cr-37—that Trotter’s “prosecution [wa]s
motivated by the impermissible basis of the government’s desire to eliminate the
testimony of a witness favorable to . . . Gerace.” Docket Item 32 at 3. But as Judge
McCarthy observed, absent a showing of selective or vindictive prosecution, questions
about whom the government charges and when it does so are solely the prerogative of
the executive branch, and the prosecutors’ underlying motivations are irrelevant.
As the government noted, see Docket Item 33 at 8-9, Trotter did not raise his
selective or vindictive prosecution argument before Judge McCarthy, see generally
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Docket Items 24 and 26. But even if Trotter had preserved this argument, this Court
would reject it.
“[T]he decision as to whether to prosecute generally rests within the broad
discretion of the prosecutor, and a prosecutor’s pretrial charging decision is presumed
legitimate.” United States v. Stewart, 590 F.3d 93, 122 (2d Cir. 2009) (alteration in
original) (quoting United States v. Sanders, 211 F.3d 711, 716 (2d Cir. 2000)). To
establish selective prosecution, a defendant must demonstrate that he “was ‘treated
differently from other similarly situated individuals’ and that ‘such differential treatment
was based on impermissible considerations such as race, religion, intent to inhibit or
punish the exercise of constitutional rights, or malicious or bad faith intent to injure
[him].’” Id. at 121 (quoting Harlen Assocs. v. Inc. Vill. of Mineola, 273 F.3d 494, 499 (2d
Cir. 2001)). Trotter falls far short of making such a showing here. Among other things,
he does not identify any “similarly situated individuals” from whom he was treated
differently.
To establish vindicative prosecution, a defendant must demonstrate “that a
prosecutor’s charging decision [is] a direct and unjustifiable penalty[] that resulted solely
from the defendant’s exercise of a protected legal right.”1 Id. at 123 (emphasis added)
(citation and internal quotation marks omitted). Here, Trotter bases his allegation of
1 A defendant also may establish vindictive prosecution by demonstrating “a
presumption of prosecutorial vindictiveness,” but such a presumption “generally does
not arise in a pretrial setting.” Sanders, 211 F.3d at 717; see also Stewart, 590 F.3d at
122 (The Second Circuit “has consistently adhered to the principle that the presumption
of prosecutorial vindictiveness does not exist in a pretrial setting.” (quoting Paradise v.
CCI Warden, 136 F.3d 331, 335 (2d Cir. 1998))).
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vindictiveness on the timing of his indictment several months after Gerace included
Trotter on Gerace’s witness list. That simply is not enough to show that “the resulting
charge was necessarily brought vindictively.” See id. at 93, 123 (rejecting claim that the
government’s “decision to file a superseding indictment following [the defendants’]
successful efforts to dismiss several counts of the initial indictment constitute[d]
vindictive prosecution”). Rather, “[a] finding of actual vindictiveness requires direct
evidence, such as evidence of a statement by the prosecutor, which is available only in
a rare case.” United States v. Johnson, 171 F.3d 139, 140-41 (2d Cir. 1999) (internal
quotation marks omitted) (citing United States v. Goodwin, 457 U.S. 368, 380-81 &
nn.12-13, 384 & n.19 (1982); United States v. King, 126 F.3d 394, 397 (2d Cir. 1997)).
There is no such evidence here.
Nor has Trotter demonstrated that he is entitled to discovery to probe the
government’s charging decisions. As the Second Circuit has explained, “[e]xamining
the basis of a prosecution delays the criminal proceeding, threatens to chill law
enforcement by subjecting the prosecutor’s motives and decision[-]making to outside
inquiry, and may undermine prosecutorial effectiveness by revealing the [g]overnment’s
enforcement policy.” Sanders, 211 F.3d at 717 (citation omitted). Thus, a defendant
seeking discovery on a selective or vindictive prosecution claim must demonstrate
“some evidence tending to show the existence of the essential elements of the
defense.” Id. (quoting United States v. Berrios, 501 F.2d 1207, 1211 (2d Cir. 1974)).
Trotter’s speculation as to the government’s motives based on timing alone is not
sufficient. See id. (explaining that “[t]he standard is a ‘rigorous’ one, ‘itself . . . a
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significant barrier to the litigation of insubstantial claims’” (internal citation omitted)
(quoting United States v. Armstrong, 517 U.S. 456, 464, 468 (1996))).
For all those reasons, this Court agrees with Judge McCarthy and denies
Trotter’s motion to dismiss.
II. 	BILL OF PARTICULARS AND INSPECTION OF GRANDY JURY MINUTES
Trotter also appeals Judge McCarthy’s denial of his motions for a bill of
particulars and to inspect the grand jury minutes. Docket Item 32 at 3-6. “The Court will
reconsider a magistrate judge’s order pertaining to discovery issues . . . only if the
magistrate judge’s determination was ‘clearly erroneous or contrary to law.’” United
States v. Louissaint, 2016 WL 543238, at *1 (W.D.N.Y. Feb. 10, 2016) (quoting 28
U.S.C. § 636(b)(1)(A)). Because Judge McCarthy’s decisions to deny Trotter’s requests
for a bill of particulars and to inspect the grand jury minutes were neither clearly
erroneous nor contrary to law, this Court will not disturb them.
“Rule 7(f) of the Federal Rules of Criminal Procedure 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 [the] 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) (citations omitted). But “[a] bill of particulars is not to be used as a discovery
device to obtain evidentiary detail about the [g]overnment’s case.” United States v.
Ralston, 2021 WL 5054464, at *1 (S.D.N.Y. Nov. 1, 2021). “Thus, one should be
ordered only where the information sought is necessary to prepare a defense or to
avoid double jeopardy.” Id. (citation and internal quotation marks omitted).
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Here, Trotter says that he “requested these particulars to avoid [a] variance at
trial” and to ensure “that the trial will not expand in scope beyond what the grand jury
charged.” Docket Item 32 at 4. But the proper time to raise a variance argument is
after the proof has been submitted at trial. See United States v. Dupre, 462 F.3d 131,
140 (2d Cir. 2006) (explaining that “[a] variance occurs when the charging terms of the
indictment are left unaltered, but the evidence at trial proves facts materially different
from those alleged in the indictment” (emphasis added) (quoting United States v.
Salmonese, 352 F.3d 608, 621 (2d Cir. 2003))).
With respect to Trotter’s motion to inspect the grand jury minutes, a court may
permit disclosure of matters occurring before the grand jury “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.” Fed. R. Crim. P. 6(e)(3)(E)(ii). But “a
defendant seeking disclosure of grand jury minutes has the burden of showing a
‘particularized need’ that outweighs the default ‘need for secrecy’ in grand jury
deliberations.” United States v. Smith, 105 F. Supp. 3d 255, 259 (W.D.N.Y. 2015)
(quoting United States v. Forde, 740 F.Supp.2d 406, 413 (S.D.N.Y. 2010)).
Trotter has not met that burden here. Rather, as in his motion for a bill of
particulars, Trotter argues that “his motion to inspect the grand jury minutes was made
with an eye toward avoiding variance at trial and protecting his right to prosecution by
the indictment as voted by the grand jury, not upon some alternative, later-adopted
factual basis.” Docket Item 32 at 5. If the proof at trial demonstrates a variance, Trotter
may of course make that argument. But the time to do so has not yet come.
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For all those reasons, this Court cannot say that Judge McCarthy’s decisions to
deny a bill of particulars and inspection of the grand jury minutes were clearly erroneous
or contrary to law.
CONCLUSION
For the reasons stated above and in the RR&O, Docket Item 28, this Court
affirms Judge McCarthy’s orders and accepts and adopts Judge McCarthy’s
recommendation. Trotter’s motions to dismiss, for a bill of particulars, and to inspect the
grand jury minutes, Docket Item 24, are DENIED.
SO ORDERED.
Dated: 	December 27, 2024
Buffalo, New York
/s/ Lawrence J. Vilardo
LAWRENCE J. VILARDO
UNITED STATES DISTRICT JUDGE
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