United States District Court, N.D. Texas, Dallas Division
MEMORANDUM OPINION AND ORDER DENYING MOTION FOR
L. HORAN, UNITED STATES MAGISTRATE JUDGE.
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.
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).
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 2018.
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
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.
Standards and Analysis
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.
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,
[i]n late July and early August 2012, Apex/Penson personnel
contacted the SEC and FBI asserting that Mr. Sledziejowski
had engaged in fraud - despite the fact that it was
Apex/Penson who failed to secure funds from the buyer before
clearing the trade. In any event, Apex/Penson personnel
worked closely with the FBI over the ensuing months to gather
evidence on each other's behalf and jointly developed a
fraud theory that sought to blame Mr. Sledziejowski for the
failure of the original stock purchase.
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).
government disputes this characterization:
Apex did not become an agent of the FBI, but instead,
remained an independent actor. The government subpoenaed
Apex's documents. Moreover, although Sledziejowski
neglected to mention it, Apex communicated through its
general counsel in many of Apex's early emails with the
FBI that are referenced in his motion. Apex further required
interviews of its employees by the government to be arranged
and attended by Apex counsel. Two such interviews are
documented in the FBI's FD-302s referenced in
Sledziejowski's motion. And as the defendant noted, Apex
asserted an attorney-client privilege over email