UNITED STATES OF AMERICA v. YEVGENIY GRININ ALEKSEY IPPOLITOV BORIS LIVSHITS SVETLANA SKVORTSOVA VADIM KONOSHCHENOK ALEXEY BRAYMAN VADIM YERMOLENKO NIKOLAOS BOGONIKOLOS (2024)

DISCOVERY ORDER

The Government alleges that Defendants “and their co-conspirators in the Serniya Network,” “an illicit procurement network operating under the direction of Russia's intelligence services,” “unlawfully sourced, purchased[,] and shipped millions of dollars in military and sensitive dual-use technologies from U.S. manufacturers and vendors ․ for Russian end users, in violation of [the International Emergency Economic Powers Act], [the Export Control Reform Act,] and other U.S. criminal statutes. These items included advanced electronics and sophisticated testing equipment used in quantum computing, hypersonic[,] and nuclear weapons development and other military and space-based military applications.” See ECF No. 52 ¶¶ 1, 27 (Second Superseding Indictment). On April 29, 2024, Defendants Vadim Yermolenko and Vadim Konoshchenok (together, the “Moving Defendants”) filed a joint motion to compel discovery. See ECF No. 116 (Motion to Compel, “MTC”).¹ On May 13, 2024, the Government filed an opposition. See ECF No. 120 (Opposition).² For the reasons explained herein, the Court grants in part and denies in part Defendant Yermolenko's motion and denies Defendant Konoshchenok's motion.

LEGAL STANDARD

“Rule 16 of the Federal Rules of Criminal Procedure governs pre-trial discovery in criminal cases.” See United States v. Loera, No. 09-cr-466, 2017 WL 2821546, at *5 (E.D.N.Y. June 29, 2017).³ Most of the requests at issue here implicate Rule 16(a)(1)(E), which provides “that a defendant is entitled to obtain from the Government documents and objects that are ‘within the government's possession, custody, or control’ if ‘(i) the item is material to preparing the defense; (ii) the government intends to use the item in its case-in-chief at trial; or (iii) the item was obtained from or belongs to the defendant.’ ” Id. (quoting Fed. R. Crim. P. 16(a)(1)(E)). “Evidence that the government does not intend to use in its case in chief is material if it could be used to counter the government's case or to bolster a defense; information not meeting either of those criteria is not to be deemed material within the meaning of the Rule merely because the government may be able to use it to rebut a defense position.” See United States v. Stevens, 985 F.2d 1175, 1180 (2d Cir. 1993).

Further, “[i]t is well-established by Brady [v. Maryland, 373 U.S. 83 (1963)] and related authorities that in a criminal prosecution, the government has an affirmative duty under the Due Process Clause to disclose favorable evidence known to it, even if no specific disclosure request is made by the defense.” See United States v. Hunter, 32 F.4th 22, 30 (2d Cir. 2022). “[T]he Government has a constitutional duty to disclose favorable evidence to the accused where such evidence is ‘material’ either to guilt or punishment.” See United States v. Coppa, 267 F.3d 132, 139 (2d Cir. 2001) (quoting Brady, 373 U.S. at 87). “Favorable evidence includes not only evidence that tends to exculpate the accused, but also evidence that is useful to impeach the credibility of a government witness.” See id. (citing Giglio v. United States, 405 U.S. 150, 154 (1972)). “Brady material must be disclosed in time for its effective use at trial or at a plea proceeding.” See id. at 135.

DISCUSSION

Each Moving Defendant advances his own discovery demands. Collectively, their requests are numerous. Mr. Yermolenko identifies sixteen categories of information and Mr. Konoshchenok presents an additional two. The Court addresses their requests separately.

I. Defendant Yermolenko's Motion

A. Defendant's Statements and Related Materials

Defendant Yermolenko seeks “any recorded statements of [him], including any wiretaps, recorded phone calls, or other recorded statements.” MTC at 4.⁴ Defendant claims that the Government “disagree[s]” that the defense is “entitled to all recorded statements made by [Defendant] under Rule 16,” and states that he seeks such statements not only under Rule 16, but also pursuant to Brady and Rule 5(f), which requires the judge, at a criminal defendant's first scheduled court date, to “issue an oral and written order to prosecution and defense counsel that confirms the disclosure obligation of the prosecutor under Brady ․ and its progeny, and the possible consequences of violating such order under applicable law.” Fed. R. Crim. P. 5(f)(1). In addition to Rule 16(a)(1)(E), Defendant invokes Rule 16(a)(1)(B)(i), which mandates the disclosure of “any relevant written or recorded statement by the defendant if ․ the statement is within the government's possession, custody, or control; and ․ the attorney for the government knows--or through due diligence could know--that the statement exists.” Because it is relevant here, the Court also notes that Rule 16(a)(1)(A) demands the Government disclose “the substance of any relevant oral statement made by the defendant, before or after arrest, in response to interrogation by a person the defendant knew was a government agent if the government intends to use the statement at trial.”

In response, the Government confirms that it has already produced to Defendant “two copies of audio recordings that reflect the complete post-arrest interview of” him. Opp. at 9. It also states that the Government advised Defendant that it “was not aware of any additional statements by the defendant in its possession that are discoverable under Rule 16 or Brady.” Id. The Government further represents that it “does not believe it has any additional statements by [Defendant] in its possession that have not already been produced.” Id. at 9 n.1.

Defendant identifies no deficiency with respect to the Government's production of Defendant's statements. He just hypothesizes that the Government is failing to meet its discovery obligations because of its allegedly “narrow view of what statements by [him] are discoverable.” MTC at 5. Without substantiation, that is not a persuasive basis to compel disclosure in the face of the Government's representation, which the Court has no basis to doubt, that the Government has complied with its obligations under Rule 16 and Brady in this respect. Opp. at 9. That conclusion is reinforced by the Government's representation that it in fact possesses no additional statements from Defendant, discoverable or not. Id. at 9 n.7. On this point, no relief is warranted.

Defendant also seeks the FBI 302 ⁵ documenting his post-arrest interview, arguing that it “would contain contextual information, including information regarding the timing, setting, and accommodations (e.g. food, drink, etc.), which are relevant to potential suppression motions.” MTC at 4. He similarly seeks “any recordings, reports, notes, memoranda, or other documentation prepared by government agents during any meeting with [him].” Id. In response, the Government refers to a letter it previously sent to the defense indicating that it is not aware of “any additional relevant written or recorded statements by the defendant as [are] required to be disclosed under Rule 16” or “constitutional discovery obligations.” See Opp. at 9 (quoting ECF No. 120-1 at 2–3 (internal quotation marks omitted)). In that same letter, the Government stated that “underlying notes” of the interview of Defendant “are not discoverable under Rule 16, as [Defendant] ha[s] ‘the substance of [the] relevant oral statement’ via the audio recording of the interview.” See ECF No. 120-1 at 3 (third brackets in original) (quoting Fed. R. Crim. P. 16(a)(1)(A)). It further contends that neither “contextual information” about Defendant's post-arrest statements nor, more generally, information “relevant to potential suppression motions,” are discoverable under Rule 16. Opp. at 9–10.

On this issue, the Government is mostly correct. To the extent Defendant claims he needs these materials for a suppression motion, Rule 16 does not afford him relief. “Rule 16 deals with information material to the defendant's case on the merits, not collateral issues like a motion to suppress.” See United States v. Palaniappan, No. 15-cr-485, 2018 WL 1997973, at *3 (E.D.N.Y. Apr. 27, 2018), aff'd, 797 F. App'x 665 (2d Cir. 2020). Further, to the extent any 302 contains Brady material, the Government represents that it is complying with its disclosure obligations, and Defendant presents nothing to undermine that assertion. See Opp. at 18; cf. United States v. Collins, 409 F. Supp. 3d 228, 244–45 (S.D.N.Y. 2019) (where defendant sought 302s and interview notes “to understand the nature, scope, and full context of ․ exculpatory statements,” denying motion to compel because the Government had already met its Brady obligation by producing summaries of the statements).

That being said, the Government's view of Rule 16 is incomplete. To be sure, as it states in its letter, the Government appears to have satisfied Rule 16(a)(1)(A). But although not specifically invoked by Defendant, Rule 16(a)(1)(B)(ii) requires production of “the portion of any written record containing the substance of any relevant oral statement made before or after arrest if the defendant made the statement in response to interrogation by a person the defendant knew was a government agent.” The Government's position that it has satisfied its disclosure obligations because it has already produced a complete copy of the interview with Defendant, although intuitively persuasive, cannot be squared with the Rule's demand for “any written record.” See United States v. Stein, 424 F. Supp. 2d 720, 728 (S.D.N.Y. 2006) (Rule 16(a)(1)(B)(ii) “plainly requires production of ‘any written record’ containing statements made during interrogation and is ‘not limited to a typed, formalized statement’ or ‘a verbatim or near-verbatim transcription’ ”); United States v. Ferguson, 478 F. Supp. 2d 220, 238 (D. Conn. 2007) (requiring the production of agents’ notes taken during an interview under Rule 16(a)(1)(B)(ii)); United States v. Ionia Mgmt. S.A., No. 07-cr-134, 2007 WL 2298570, at *2 (D. Conn. Aug. 3, 2007) (same); see also United States v. Clark, 385 F.3d 609, 619 (6th Cir. 2004) (Rule 16(a)(1)(B)(ii) “imposes a more specific disclosure obligation than Rule 16(a)(1)(A)”).

Accordingly, the Government shall promptly comply with Rule 16(a)(1)(B)(ii). Because the Government's disclosure obligation extends only to “the portion of any written record” that must be produced, the Government may appropriately redact from its production any non-discoverable material, as it has already done for certain other documents. See United States v. Martinez-Martinez, No. 01-cr-307, 2001 WL 1287040, at *7 (S.D.N.Y. Oct. 24, 2001) (“To the extent that any material falls outside the scope of Rule 16, the Government need not disclose that material to the defendant[ ]. If such material is on the same page as material that is within the scope of Rule 16, redaction of the non-discoverable material is a sensible and appropriate solution.”). Defendant's motion to compel is granted with respect to Rule 16(a)(1)(B)(ii).

B. Alleged Conspiracy

At various points in Defendant's motion, he makes discovery requests concerning the scope and nature of the alleged conspiracy. They include materials “documenting the involvement of any individuals,” including charged and uncharged co-conspirators, involved with financial transactions “at the direction of” co-defendant Livshits. MTC at 5–6. In addition, he seeks identifying information for those “acting at Mr. Livshits’ direction,” as well as “records documenting compensation” of these individuals and “[a] complete list of all companies registered in the United States that the government believes were registered by Mr. Livshits or by another individual at his direction.” Id. at 6–7. Additionally, Defendant demands “[a]ll information in the government's control regarding the mens rea of other individuals recruited to assist Mr. Livshits” in transactions and materials “concerning [Defendant's] knowledge of the sanctions evasion conspiracy and the actual evasion of sanctions by other members of the conspiracy.” Id. at 7–8 (italicization added).

The Government provides three responses. First, it agrees that “records related to some of these topics are potentially discoverable.” Opp. at 16. For those materials, the Government avers that it would produce any document “reflect[ing] the defendant's knowledge (or lack thereof) of the conspiracy” and represents that it believes it has already disclosed such materials to Defendant. Id. Second, the Government states that other parts of the above requests, like potential witness identification information, “are likely not discoverable.” Id. Third, it argues that the requests are “so overbroad and non-specific that [they] provide[ ] neither the government nor the Court with the ability to determine what specific items might still be in the possession of the government that [Defendant] believes should be turned over.” Id. at 16–17.

Those responses are well taken. “There is no general constitutional right to discovery in a criminal case, and Brady did not create one.” See Weatherford v. Bursey, 429 U.S. 545, 559 (1977). In addition, “Rule 16 does not entitle a criminal defendant to a broad and blind fishing expedition among items possessed by the Government on the chance that something impeaching might turn up.” See United States v. Scully, 108 F. Supp. 3d 59, 123 (E.D.N.Y. 2015). Against this backdrop, Defendant's requests are plainly overbroad and seek to contravene the basic principle that there is “no duty to provide defense counsel with unlimited discovery of everything known by the prosecutor.” See United States v. Agurs, 427 U.S. 97, 106 (1976). Defendant has sent the Court a sprawling set of production requests, but the Court declines to issue expansive mandates to the Government to produce information and materials when the Court cannot even ascertain what those mandates would encompass.

Defendant provides little support for his requests, substantiating only his first request related to the “involvement of any individuals” in the conspiracy. He claims his demand is “not speculative” because the defense previously made a general request for documents in this category but received no response; later, Defendant made requests concerning two specific individuals identified in discovery and obtained two 302s in response. MTC at 5–6. Defendant then complains that the Government has not responded to additional related requests served six days before Defendant filed the instant motion. Id. at 6. Contrary to Defendant's assertion that the Government is “deflect[ing]” his requests, his own example shows that the Government responded to his specific discovery requests, even though it maintains that such production was not required. See id.; ECF No. 120-1 at 4. As it relates to Defendant's follow-up requests, the Court will not order relief when Defendant made those requests just before filing the instant motion because the Government did not have an adequate opportunity to respond and, more importantly, he has not explained why production of the requested documents is required.

More generally and fundamentally, Defendant's submission is devoid of explanation as to why he is entitled to the requested relief. This is particularly true with respect to expansive requests for witness identifying information or a “complete list” of companies. Indeed, these demands “sound more like civil interrogatories under civil Rule 33 than document requests under criminal Rule 16(a)(1)(E).” See United States v. Cameron, 672 F. Supp. 2d 133, 137 (D. Me. 2009). In sum, the Court is left with “no indication” that the sweeping order requested by Defendant is necessary and therefore orders no relief. See United States v. Jones, No. 19-cv-54, 2024 WL 1704756, at *3 (E.D.N.Y. Apr. 19, 2024).

C. Strandway Materials

Defendant seeks “[a]ll information in the government's possession or control related to the bank account opened under the name ‘Strandway LLC’ in Sheepshead Bay, Brooklyn.” MTC at 7. Defendant provides no further legal or factual argumentation. See id. In response, the Government states that it produced bank account records related to Strandway and other entities more than six months ago, and claims that “[i]t is not clear what additional records [Defendant] seeks.” Opp. at 11. Once again, the Court agrees. Absent an indication that there is a deficiency that the Government must remedy, the Court will not order relief here either.

D. Additional Communications

Defendant also seeks communications with his co-defendants, as well as with “agents of the Russian government” and others. MTC at 8. Again, the Government represents that is has no additional statements from Defendant. See Opp. at 9 n.7. And to the extent this request would capture materials other than Defendant's own statements, he provides not a word of support to suggest entitlement to such materials. See, e.g., United States v. Weigand, 482 F. Supp. 3d 224, 247 (S.D.N.Y. 2020) (denying motion to compel production of co-conspirators’ statements where “Defendants offer[ed] no specific rationale” for their production under the “broad set of disclosure obligations” imposed by Rule 16(a)(1)(E)). Nor does Defendant even intimate that there is a deficiency in the Government's production. If, after reviewing the Government's voluminous production, Defendant believes there are specific communications missing that he is entitled to, Defendant should request them from the Government. See United States v. Sampson, 898 F.3d 270, 280 (2d Cir. 2018) (“[A] federal criminal defendant can compel the government to disclose specified materials simply by asking for them ․”). Should the Government refuse, Defendant is of course entitled to renew his motion.⁶ But because “there may be nothing there at all,” and Defendant has provided no support to the contrary, the Court will not preemptively order the production of some unknown, undefined quantum of materials. See Loera, 2017 WL 2821546, at *7. The Government is aware of its ongoing obligations.

E. Law Enforcement Reports

Defendant seeks unredacted versions of four law enforcement reports already produced. See MTC at 7. The Government has declined to remove redactions from those reports despite Defendant's requests. See id.; Opp. at 15. Defendant asks the Court to “review unredacted versions of these materials in camera and order disclosure if appropriate” because the Government has taken an “excessively narrow view of [its] discovery obligations in several other areas.” MTC at 7–8. The Court is not persuaded. Defendant fails to support his conclusory claim that the Government's view of its discovery obligations is impermissibly narrow. Nor does he explain why the Court should doubt the Government's good-faith representation that the redacted content is not discoverable under Rule 16, see Opp. at 15, particularly where the Government has committed to remove the redactions should the concealed information become discoverable, see ECF No. 116-2 at 1. At this juncture, the Court declines to review the unredacted discovery and will not order its production. See United States v. Monge, No. 11-cr-116, 2012 WL 1900363, at *11 (W.D.N.Y. May 24, 2012) (denying motion for disclosure and additionally denying request for in camera review where defendant “failed to sufficiently articulate a need” for such review).

F. Surveillance

Defendant seeks “[a]ny video surveillance documenting [his] involvement in the instant offense” and “[notice] of any surreptitious government surveillance of [his] communications and personal information.” MTC at 4, 8. He identifies no basis for compelling such disclosure. And the Government represents that there are no such records subject to disclosure under Rule 16. See Opp. at 15–16. Accordingly, there is nothing for the Court to compel, and the request is denied. See Weigand, 482 F. Supp. 3d at 244 (denying motion to compel where the Government represented that requested records had already been produced).

G. Search Warrant Materials

Defendant seeks “[a]ny FBI 302s documenting the manner and scope of the search of [his] email accounts and digital devices,” which he argues “are necessary for the defense to compare the scope of search executed with the scope authorized by the search warrants previously produced in discovery.” MTC at 5. In response, the Government confirms that Defendant “has received in discovery the complete set of search warrants, supporting affidavits, and search warrant attachments relevant to searches of his records.” Opp. at 12. According to the Government, Defendant has also received “copies of the items identified as relevant from those searches, and the complete set of records obtained from the relevant email provider or imaged from the relevant device.” Id. On this basis, the Government argues that Defendant already has the materials needed to determine “the precise scope of what the court authorized” to be searched. Id.

Defendant has not identified authority requiring the production of the requested 302s and, to the extent such materials exist here, the Court declines to order their production. The same is true of Defendant's request for all information “regarding potential material misrepresentations and omissions in the government's warrant applications.” MTC at 5. In addition, Defendant's request for this latter set of materials appears to be based on nothing more than speculation as he does not point to any reason to believe such items even exist. See Opp. at 12 n.9. The Court also credits the Government's representation that, if it became aware of such materials, the prosecution would disclose them. See id. Finally, the Court agrees with the Government that ordering further disclosure is unnecessary because Defendant has more than sufficient discovery to examine the scope of the Government's searches. Defendant's requests are denied.

H. FISA

Relatedly, Defendant seeks “[a]ny information” concerning “any and all warrants, applications, and materials related to the investigation of the charged conspiracy, including any FISA [Foreign Intelligence Surveillance Act] warrants that may pre-date subsequent search warrant applications, and copies of those warrants, applications, and materials.” MTC at 8. He further claims that “[t]he government has indicated that notice would have been provided and it has not been in this case.” Id. In turn, he “asks that the Court simply direct the government to confirm that no FISA warrant was obtained, if true.” Id. In response, the Government states that it is aware of its FISA obligations, including the requirement to notify the “target of ․ electronic surveillance or any other person whose communications or activities were subject to electronic surveillance” if it “intends to enter into evidence or otherwise use” “any information obtained or derived from an electronic surveillance” under FISA. See 50 U.S.C. §§ 1801(k); 1806(c), (e).

Notably absent from Defendant's submission is any authority supporting its requested relief. The Court is also not aware of any. Nor does the contention that Defendant's request is “simpl[e]” render it an appropriate criminal discovery request. The Court credits the Government's representation that it is “aware of its obligations under the law,” and understands that the Government is in and will remain in compliance with any applicable disclosure obligation pursuant to FISA. Opp. at 14. Thus, the Court orders no relief.

I. Loss Calculations

Defendant demands that the Government tell him “what transactions and/or conduct [it] is ․ relying upon to establish the loss amount.” MTC at 7. Relying on United States v. Studley, 47 F.3d 569 (2d Cir. 1995), he argues that he should receive this information because he “is entitled to know the scope of the conspiracy the government intends to present at trial and whether that conduct was reasonably foreseeable to him, as well as his potential sentencing exposure post-trial.” MTC at 7. He also seeks an order compelling the Government to inform him how it calculated the $216,000 forfeiture amount extended by the Government to Defendant as part of a plea offer, information which the Government has previously refused to provide to him. See id. Defendant contends that this information would “inform[ ] ․ the scope of the conspiracy the government intends to present at trial” as well as “a meaningful understanding of any potential plea offer extended.” Id.

The Government has three arguments in response. First, it claims that it does not need to prove actual loss for any of the crimes for which Defendant is charged. See Opp. at 13. Second, it argues that it has already provided Defendant with materials sufficient to determine both the scope of the conspiracy and “intended or actual loss,” and has previously informed Defendant that he can calculate losses for himself. Id. at 13–14. Third, the Government states that neither Rule 16 nor Brady require production for the purpose of “understand[ing] ․ any potential plea offer.” Id. at 13.

The Government's arguments are persuasive. Defendant has not articulated a basis upon which he is entitled to the requested relief. More generally, his demands do not appear to implicate Brady nor a type of discovery permitted by Rule 16; rather, they again more closely resemble impermissible interrogatories. See Cameron, 672 F. Supp. 2d at 137. And even had the Government performed the kind of loss analysis Defendant now seeks, he has failed to demonstrate materiality under Rule 16(a)(1)(E) because none of the offenses for which he is charged ⁷ require proof of actual loss. See Weigand, 482 F. Supp. 3d at 245 (denying defendants’ motion to compel “transaction analyses” for lack of materiality because the prosecution “need not offer evidence of particular transactions to prove conspiracy”); United States v. Shteyman, No. 10-cr-347, 2011 WL 2006291, at *4 (E.D.N.Y. May 23, 2011) (denying motion for bill of particulars concerning “approximate calculation of losses that is attributable to the alleged scheme” as “loss calculation, though relevant to sentencing and possible restitution, is not among the elements necessary to establish a violation of any of the statutes with which [defendant] is charged”); United States v. Cordero-Perez, No. 14-cr-177, 2015 WL 403231, at *5 (M.D. Fla. Jan. 28, 2015) (spreadsheets containing fraud loss reports not material where “[a]mount of loss was neither an element of any of the counts ․ nor an element of any defense”).

Defendant's passing reference to Studley does not change the Court's conclusion because he does not explain how it advances his materiality argument, much less entitles him to the specific relief he seeks. In that case, the Second Circuit, reviewing the district court's application of the Sentencing Guidelines, restated its prior holding that “a district court must make a particularized finding as to whether the activity [undertaken by a co-conspirator] was foreseeable to the defendant” and further held that the Guidelines “require the district court to make a particularized finding of the scope of the criminal activity agreed upon by the defendant.” See Studley, 47 F.3d at 574. To be sure, amount of loss can alter Defendant's sentence, but that does not demonstrate materiality for the purpose of Rule 16 discovery. See Shteyman, 2011 WL 2006291, at *4; Cordero-Perez, 2015 WL 403231, at *6 (“[T]he evidence regarding amount of loss, while relevant to determining the appropriate sentence, is not relevant to the elements of the offenses charged in the indictment or any conceivable defense.”); United States v. Murray, No. 12-cr-0278, 2013 WL 183970, at *4 (N.D. Cal. Jan. 17, 2013) (denying defendant's motion for loss calculations because loss was “not an element of the charged offenses” and is “really about sentencing”). Similarly, to the extent that Defendant contends that he needs loss calculation information to assess his plea offer, Rule 16 does not supply him with relief. See Cordero-Perez, 2015 WL 403231, at *6 (“[E]vidence is not ‘material’ under Rule 16 simply because having it would have allowed Defendant to make a better informed decision whether to plead guilty.”). Further, if such information implicated Brady, the Court has no reason to doubt the Government's representation that it is in compliance with its constitutional duties. Opp. at 18.

II. Defendant Konoshchenok's Motion

Defendant Konoshchenok seeks “[a]ny and all documents showing [he] had any connection to Russia” and “[d]ocuments showing [his] position in the military.” MTC at 8. For context, the Government alleges that Defendant “identified himself as a ‘Colonel’ with the FSB [Russia's Federal Security Service] and was depicted in photographs wearing an FSB uniform.” See ECF No. 52 ¶¶ 1, 11. He invokes the Fourth, Fifth, and Sixth Amendments to the Constitution, as well as Rule 5(f), as previously discussed, and 18 U.S.C. § 3504, see MTC at 9, which allows a defendant to “challenge a source of evidence as ‘inadmissible because it is the primary product of an unlawful act or because it was obtained by the exploitation of an unlawful act.’ ” See United States v. Hossain, No. 19-cr-606, 2020 WL 6874910, at *5 (S.D.N.Y. Nov. 23, 2020) (quoting 18 U.S.C. § 3504(a)(1)). Specifically, after a defendant makes such a claim, the statute requires the Government to “affirm or deny the occurrence of the alleged unlawful act.” 18 U.S.C. § 3504(a)(1). Defendant asserts that disclosure of these materials “is necessary for the defense to prepare and investigate possible defenses the defendants might advance at trial and effectively litigate their pretrial motions.” MTC at 9. According to the Government, Defendant did not make these requests to the Government until he filed the instant motion. Opp. at 7 n.6.

In response, the Government points to several specific pieces of evidence, such as Defendant's Russian passports, that it characterizes as responsive to these requests. Id. at 17. The Government further claims that the requests are overbroad and fail to identify potentially discoverable material. Id. The Court agrees. Neither the Constitution nor Rule 5(f) entitles Defendant to the kind of thematic discovery he seeks. See generally Sampson, 898 F.3d at 280 (“[F]ederal criminal discovery is far more limited than federal civil discovery.”). Nor does Section 3504 entitle him to any relief at this juncture because he “does not contend that [any] evidence was unlawfully obtained.” See Hossain, 2020 WL 6874910, at *5; see also United States v. Aref, 285 F. App'x 784, 793 (2d Cir. 2008) (“Although a § 3504 claim need not be particularized, it may not be based upon mere suspicion but must at least appear to have a colorable basis before it may function to trigger the government's obligation to respond ․”). Defendant's motion to compel is denied in full.

CONCLUSION

For the reasons stated above, Defendant Yermolenko's motion to compel is granted in part and denied in part, and Defendant Konoshchenok's motion is denied in full.

Since both parties filed papers under seal and the Court refers to currently sealed material herein, out of an abundance of caution, the Court is publishing this Order under seal and making it available only to the parties. Within one week of the filing of this sealed Order on the docket, the parties shall jointly notify the Court whether any redactions hereto, if permissible, are necessary, and if so, they must propose such redactions. Also within one week of the filing of this Order, the Government shall indicate why its brief (which is identical to the publicly filed one) and exhibits (not publicly filed at all) currently docketed under seal, ECF No. 120, should not be unsealed. See United States v. Avenatti, 550 F. Supp. 3d 36, 44–46 (S.D.N.Y. 2021) (describing the First Amendment qualified right of access to criminal proceedings and the common law presumption in favor of public access).

SO ORDERED.

FOOTNOTES

1.   Moving Defendants first erroneously filed their motion without exhibits. See ECF No. 115. The Court disregards that filing, which will also be terminated with this Order. On May 1, 2024, Moving Defendants filed a redacted, public version of their motion. See ECF No. 117. The Court cites to that public version.

2.   On the same day, the Government also filed a redacted, public version of its Opposition without exhibits. See ECF No. 121. Again, the Court cites to that public version.

3.   Unless noted, case law quotations in this Order accept all alterations and omit internal quotation marks, citations, and footnotes.

4.   The Court refers to the pages assigned by the Electronic Case Files system (“ECF”). Quotations from the parties’ papers omit all bolding. Underlining is replaced by italicization.

5.   An FBI 302 “is a form routinely used to memorialize an FBI interview of a witness.” See Picard v. Sage Realty, No. 20-cv-10109, 2021 WL 6052422, at *2 n.2 (S.D.N.Y. Dec. 21, 2021).

6.   Both Defendants “request[ ] leave to file further motions upon receipt of any Rule 16 discovery, Brady material, and Giglio material not timely disclosed, including but not limited [to] the items specifically requested” in the joint motion. MTC at 9. To the extent that request is premature, it is denied, but any Defendant is permitted to seek relief concerning the Government's noncompliance with its discovery obligations at any time. The same applies to the Government's requests for reciprocal discovery, which it says have repeatedly gone unanswered. See Opp. at 6. For the avoidance of doubt, the Court's previously entered scheduling order concerning Rule 12 motions and motions in limine remains in effect.

7.   As stated in the Second Superseding Indictment, ECF No. 52, they are: conspiracy to defraud the United States (count 1); bank fraud conspiracy (count 3); wire fraud conspiracy (count 4); money laundering conspiracy (count 9); conspiracy to violate the Export Control Reform Act (count 14); smuggling goods from the United States (count 15); and failure to file electronic export information (count 16).

HECTOR GONZALEZ United States District Judge