United States District Court, D. South Dakota
JEFFREY L. VIKEN, Chief District Judge.
Defendant Luis Olivares filed a motion asking the court to compel the government to disclose "the recordings of co-defendant's during interviews and the substance of plea agreements and cooperation agreements, " "the cell phone records of Brian Walker and Precious Bartlett, " the "IC Solutions Videos from the jail visits of [c]o-[d]efendants" and "the fingerprints found on the drug packages which have been previously determined not to be those of the [d]efendant... [and a] request that the fingerprints be run against those of Brian Walker... [and] turned over to the [d]efendant." (Docket 1020 at pp.1-2).
Pursuant to 28 U.S.C. § 636(b)(1)(A), the court referred this motion to Magistrate Judge Veronica L. Duffy for resolution. (Docket 1021). The magistrate judge issued an order denying Mr. Olivares' motion to compel in its entirety. (Docket 1041). Mr. Olivares timely filed objections to this order, seeking reconsideration of the magistrate judge's decision. (Docket 1043). Pursuant to 28 U.S.C. § 636(b)(1)(A), this court may only reconsider a pretrial matter under subparagraph (A) where it has been shown that the magistrate judge's order is clearly erroneous or contrary to law. 28 U.S.C. § 636(b)(1)(A); see also Ferguson v. United States, 484 F.3d 1068, 1076 (8th Cir. 2007). In her order of September 9, 2014, Magistrate Judge Duffy articulated her reasoning for denying the motion to compel and carefully assessed the law and its application to the facts of the case. Considering the entire record, the court concludes Magistrate Judge Duffy's order is not clearly erroneous or contrary to law.
Mr. Olivares objects to Magistrate Judge Duffy's conclusions as follows:
1. The government has not provided him with all of the recordings of co-defendants' interviews and he should be provided with a catalog of all recordings taken in this case;
2. Mr. Olivares modified his initial request for the cell phone records of Brian Walker and Precious Bartlett. Mr. Olivares requests not only the corporate produced cell phone records but also the text messages, pictures, web-searches and contacts on each of the co-defendants' cell phones;
3. Mr. Olivares modified his initial request for the video recordings of jail visits. Mr. Olivares requests all recordings of any phone call made by any co-defendant or jail visit by the government. Mr. Olivares further requests a catalog of all media, including recordings, pictures, digital information, computer files and any other type of media; and
4. Mr. Olivares modified his initial request that the identity of the fingerprints found on the drug packages be compared against those of Brian Walker. Mr. Olivares now requests the identity of the fingerprints found on the drug packages be compared with those of Brian Walker and Agent Derek Hill.
See Dockets 1020 & 1043.
Because Mr. Olivares objects to Magistrate Judge Duffy's conclusions and seeks to modify the discovery material sought beyond the scope of his original motion, the court treats the modifications as distinct discovery requests. Each objection and modification is examined in turn.
1. Recordings of Co-Defendants' Interviews
Mr. Olivares asserts he has not been provided with all the recordings of co-defendant interviews. (Docket 1043 at p. 1). Mr. Olivares' objection is based on alleged discussions he had with co-defendants located in the Pennington County Jail. Id . Mr. Olivares includes in this request recorded interviews related to "subsequent arrest[s] on violations of the terms of supervised release and recorded debriefs." Id . Mr. Olivares also requests the government provide him with a catalog of all recordings made in this case. Id . In its response to Mr. Olivares' objection, the government asserts that "[t]o [its] knowledge, [Mr. Olivares] has been sent all recorded interviews of both the [d]efendant and codefendants. The United States is taking steps to verify this with law enforcement and will provide the [d]efendant any additional recordings, if they exist." (Docket 1045 at p. 1); see also Docket 1040 at p. 1 (The government asserted it sent defense counsel "all recorded interviews in [its] possession.").
Magistrate Judge Duffy denied Mr. Olivares' discovery request as moot because the government certified it already provided "all such discovery in its possession to Mr. Olivares." (Docket 1041 at p. 3). To date, the government has twice certified it sent Mr. Olivares all of the recorded interviews of both he and the other co-defendants. The government stated it is verifying with law enforcement that Mr. Olivares received all interview recordings to date and will provide Mr. Olivares with any additional recordings it finds. For these reasons, the magistrate judge's conclusion is not clearly erroneous or contrary to law. Defendant's objection on this basis is overruled.
Defendant's request for a catalog of all recordings of any kind made in this case is unnecessary as defendant has been, or will soon be, provided with the requested recordings. Defendant's request for a ...