District Judge Alvin K. Hellerstein

 

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Defendant was indicted for firearms trafficking based on claims he and coconspirators transported guns from Florida for sale in New York. The complaint, grounded on a DEA agent’s sworn statement, alleged a coconspirator (CC-3) told the agent she obtained guns “on consignment” from defendant. Defendant sought the indictment’s dismissal over the government’s failure to preserve exculpatory videos on CC-3′s cell phone showing that CC-3 obtained the guns by burglarizing Justin’s house. The court denied dismissal, noting that as it was unclear how the government will prove defendant’s involvement in the trafficking offenses, it was unclear if CC-3′s phone had exculpatory value under Brady. Nor was the indictment’s dismissal required due to spoliation of evidence. Defendant did not show that the missing videos held exculpatory value apparent to the government before CC-3 lost her phone. Defendant had also already received “comparable evidence” through prior productions. Nor did he show the government acted in bad faith by failing to search CC-3′s phone and preserving its contents. Because there was no evidence of malicious or deliberate misconduct, the DEA’s negligence did not amount to bad faith.