Robert Morgan says the government's delays are denying him his constitutional right to a speedy trial, so now he wants the court to throw out the charges against him.
Attorneys for the Rochester real estate developer have filed a motion with federal court in Rochester, asking Judge Elizabeth A. Wolford to dismiss the indictment against him.
Morgan's attorneys argue in a 36-page legal memo that prosecutors and investigators botched their processing of documents obtained from FBI raids nearly 20 months ago and subsequently failed to provide defense attorneys with all of the evidence in a timely manner as required by law.
That's left Morgan "laboring under the anxiety and opprobrium attendant the criminal indictment for an unnecessarily protracted period while the government slowly, haphazardly and inexpertly analyzes (or not) the millions of pages and gigabytes of data it seized," the memo stated.
"That is the very harm that speedy trial rights are designed to protect criminal defendants against," the memo continued. Morgan's trial is not scheduled to begin until early next year.
Robert Morgan, his son, his finance director and a Buffalo-area mortgage broker are facing a 114-count indictment on federal charges of mortgage and insurance fraud related to an alleged scheme to defraud lenders by falsifying rent rolls, financial statements, invoices and other documents to support larger mortgage loans than would otherwise be justified by the actual value of apartment properties.
Prosecutors have not yet responded to the defense's motion to dismiss.
Morgan's attorneys assert that prosecutors "chose to execute a public, sweeping search warrant" of Morgan's business just eight days before seeking the initial indictment against his son and nephew, in order to "collect evidence it could not, and concedes it did not, process or analyze in sufficient time to present to the grand jury." And they still hadn't finished reviewing that evidence a year later, when the new indictment added Morgan to the defendants.
Yet, the attorneys continued, that runs counter to the government's own policy for "discovery," which notes that searches of large volumes of electronic evidence can take a long time and should be done "well before indictment."
Instead, the attorneys say, the government has repeatedly failed to produce everything it has – including the contents of four of the 15 electronic devices seized in the original May 2018 raid. "Nineteen months after the initial indictment in this matter, discovery is by no means complete," the memo said.
The attorneys say in the memo that the government has demonstrated "chronic production deficiencies," such as failing to fully identify all the material it has to disclose in its possession, and failing to provide the technical codes and other source information that the defense needs in order to review the documents. The memo said prosecutors have sought multiple extensions as a result – much to the exasperation of a prior judge in the case, who finally threatened to have the time count against the government in relation to a speedy trial.
When challenged, the attorneys contend, the government provided "shifting explanations," "evasive answers" and misrepresentations in response.
The attorneys noted later that more than 106 days of unexcused time have elapsed since the indictment. That's far more than the 70-day requirement for trials to begin under the Speedy Trial Act.
Judges can grant exclusions of time in advance when they conclude that "the ends of justice" are served by a delay, despite the interests of the public and the defendant. Magistrate Judge Kenneth Schroeder granted such an exemption from May 29, 2019, through Jan. 31, 2020, but only if the government completed its discovery by July 31, 2019. When it failed to do so, the clock started ticking on Aug. 1, the Morgan defense memo said.
Finally, the defense attorneys claim, the combination of the nonviolent nature of the charges – including the lack of any losses suffered by any lenders – and the government's track record in the case are enough to justify barring the government from re-trying Morgan.