Order Affirming Magistrate Judge's Order on Government's Motion to Exclude

ROBERT N. SCOLA, Jr., District Judge.

This matter is before the Court on the Government's objections (ECF No. 484) to Magistrate Judge Otazo-Reyes's Order Re: D.E. 419 (ECF No. 469). The Government moved to exclude Gabriel and Guillermo Delgado's (the "Delgado brothers") testimony from an upcoming evidentiary hearing on Defendant Esformes's motions to disqualify the prosecution team and dismiss the Second Superseding Indictment. (Mot. to Exclude, ECF No. 419.) The Court referred the motion to exclude to Judge Otazo-Reyes (ECF No. 453). Judge Otazo-Reyes denied the motion to exclude, but limited the Delgado brothers' testimony to thirteen areas of inquiry identified by Defendant Esformes that Judge Otazo-Reyes found to be relevant to the motion to disqualify and the motion to dismiss. The Government objects to the Order, arguing that the areas of inquiry are irrelevant to any factual disputes that need to be resolved at the evidentiary hearing and that the areas of inquiry involve privileged communications. (Obj.'s at 5.)

Federal Rule of Civil Procedure 72(a) and Local Magistrate Judge Rule 4(a) require that a district judge apply a "clearly erroneous or contrary to law" standard of review when considering objections to non-dispositive rulings. The Court finds that Judge Otazo-Reyes's Order is not clearly erroneous or contrary to law. The thirteen areas of inquiry identified in the Order are relevant topics about which the Delgado brothers should be permitted to testify. Judge Otazo-Reyes's Order specifically states that counsel for the Delgado brothers will have the opportunity to raise objections based on attorney-client privilege. (Order at 3.) In addition, the Order states that the Government will have the opportunity to raise objections based on privilege and evidentiary principles, as well as objections to questions that are beyond the scope of the motion to disqualify and the motion to dismiss. (Id.) Therefore, the Order provides safeguards that specifically address the Government's concerns about irrelevant testimony and privilege. However, the Court suggests that Norman Moscowitz and Joaquin Mendez be called to testify before the Delgado brothers, as their testimony could obviate the need for the Delgado brothers to testify about some or all of the areas of inquiry identified in the Order.

Accordingly, the Court overrules the Government's objections (ECF No. 484) and affirms Judge Otazo Reyes's Order Re: D.E. 419 (ECF No. 469).

Done and ordered.