DAVID L. HORAN, Magistrate Judge.
Defendant Roman Sledziejowski has filed a Motion to Dismiss and for Discovery and Brief in Support, see Dkt. Nos. 38 & 39, which United States District Judge Jane J. Boyle has referred to the undersigned United States magistrate judge for hearing, if necessary, and recommendation or determination under 28 U.S.C. § 636(b), see Dkt. No. 47. The government has filed a response. See Dkt. No. 43.
As to Mr. Sledziejowski's grounds to dismiss the indictment — for improper venue and as a result of prejudicial pre-indictment delay — the undersigned issued, on February 15, 2018, findings of fact, conclusions of law, and a recommendation that the Court not dismiss the indictment. See Dkt. No. 48. This order is entered to determine the discovery portion of the referred motion. See FED. R. CRIM. P. 59(a).
Through an indictment in this district returned in March 2016, Mr. Sledziejowski is charged with three counts of securities fraud in violation of 15 U.S.C. § 78j(b) and 78ff and 17 C.F.R. § 240.10b-5 based on transactions that occurred in July 2012.
In his discovery motion, he identifies six categories of material that he contends "should be produced pursuant to the Government's discovery obligations." Dkt. No. 38 at 23; see id. at 23-24. The government responds that it "has previously advised defense counsel that it has produced all material it received, and that it will continue to comply with its obligations regarding the government's future receipt of discoverable material." Dkt. No. 43 at 11.
But Mr. Sledziejowski also argues that — consistent with its disclosure obligations under the Federal Rules of Criminal Procedure; the Jencks Act, 18 U.S.C. § 3500; Brady v. Maryland, 373 U.S. 83 (1963), and its progeny; and Giglio v. United States, 405 U.S. 150 (1972), and its progeny — the government must search for and produce the requested materials from the files of the United States Securities and Exchange Commission (the "SEC") and two private entities — Penson Financial Services, Inc. and Apex Clearing Corporation — asserting that all three entities are "part of the prosecution team" in this matter. Dkt. No. 38 at 17-24.
As to the SEC only, "[t]he government agrees to review [that agency's] file in this matter to determine if there are materials, beyond those the government previously produced, that are responsive to the defendant's request. If such discoverable material does exist, the government agrees to produce it." Dkt. No. 43 at 7 (further providing: "The government does not necessarily concede that the SEC is part of its prosecution team, but the defendant's request for the Court to make such a finding is unnecessary given the government's agreement to search the SEC's files for the material and produce it, if any exists, as the defendant requests."). In light of this agreement, the Court DENIES as moot Mr. Sledziejowski's discovery motion as to the SEC.
Turning to Penson and Apex, as alleged in the indictment, an entity owned and controlled by Mr. Sledziejowski cleared the July 2012 trades at issue through Apex. See Dkt. No. 1, ¶¶ 2, 7. Apex acquired the applicable clearing contract from Penson in approximately June 2012. See id., ¶ 7. And, as characterized in Mr. Sledziejowski's discovery motion,
Dkt. No. 38 at 6; see also id. at 19-20 (alleging that, as part of a "joint investigation" with the government, Apex/Penson personnel discussed with the government "potential legal theories and exchanged information regarding their findings" and gathered documents for the government).
The government disputes this characterization:
Dkt. No. 43 at 10 (citations omitted).
As another judge of this Court has observed, in the context of a defendant's request that the government disclose "any information or statement of a person interviewed by . . . [a] private fraud investigator,"
United States v. Haney, No. 3:09-cr-249-D (03), 2011 WL 976786, at *2 & n.3 (N.D. Tex. Mar. 21, 2011) (original brackets omitted); see Josleyn, 206 F.3d at 154 (noting that "[t]he government's interest `is not that it shall win a case, but that justice shall be done'" and that the "private interests" of "cooperating parties" "are often far from identical to — or even congruent with — the government's interests" (quoting Berger v. United States, 295 U.S. 78, 88 (1935))); see also United States v. Tomasetta, No. 10 Cr. 1205 (PAC), 2012 WL 896152, at *5 (S.D.N.Y. Mar. 16, 2012) ("[T]he fact that a third-party corporation is cooperating with the Government's investigation — as many do — does not turn it into an `agent' of the Government." (citing Josleyn, 206 F.3d at 154)); United States v. June, No. 10-cr-30021-MAP, 2012 WL 245243, at *2 (D. Mass. Jan. 25, 2012) ("[T]he relationship between the government and `cooperating private parties' is not analogous to the relationship among various police investigators. It would be unfair to the government to require it to attempt to ferret out documents from third parties.").
Comparing this authority against the parties' showings, Mr. Sledziejowski has not shown that the government's discovery obligations extend to Apex/Penson. And his request that the government "search in, and produce discovery materials from, the files of" Apex/Penson is DENIED without prejudice to Mr. Sledziejowski's attempting to obtain the materials that he seeks from Apex/Penson through a subpoena under Federal Rule of Criminal Procedure 17(c). Dkt. No. 38 at 17; see id. at 21 n.7.
For these reasons, the Court DENIES as moot in part and DENIES without prejudice in part the discovery portion of Defendant Roman Sledziejowski's Motion to Dismiss and for Discovery [Dkt. No. 38].
SO ORDERED.