USA v. Nolde

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
UNITED STATES OF AMERICA,
Plaintiff,
vs.
BRYCE A. NOLDE,
Defendant.
8:24-CR-23
MEMORANDUM AND ORDER ON
DEFENDANT’S MOTION TO COMPEL
DISCLOSURE AND GOVERNMENT’S
MOTION TO STRIKE
This matter is before the Court with respect to defendant Bryce A. Nolde’s Motion to
Compel Disclosure and For In Camera Review [Regarding] Electronic Communications. Filing 172.
The defendant filed a brief in support of his motion. Filing 173. The Government has responded to
the motion, Filing 176, and the defendant has filed a reply brief, Filing 178. The Government has
also filed a Motion to Strike Defendant’s Reply Brief, Filing 180, and a brief in support of that
motion, Filing 181. For the reasons below, the defendant’s motion is denied and the Government’s
motion is granted.
I. 	BACKGROUND
The defendant has been charged with three counts of wire fraud affecting a financial
institution in violation of 18 U.S.C. § 1343 related to his alleged conduct as the president and
registered agent of BV Builders, LLC (BV Builders), a Nebraska-based construction company
specializing in the construction of “barndominiums” and “shouses.” Filing 98. Trial is set for
January 26, 2026. Less than one week before the start of trial and more than ten weeks after the
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pretrial motion deadline expired,1 the defendant filed a Motion to Compel Disclosure and For In
Camera Review [Regarding] Electronic Communications raising two discovery issues: “(1) the
government’s handling and disclosure of Defendant’s Google Workspace business email account
after issuing a preservation request, and (2) the appearance in government-produced discovery of
text messages dated after Defendant’s electronic devices were returned to him, without disclosure
of the source or legal authority under which those communications were obtained.” Filing 172;
Filing 173 at 1. The defendant frames these issues as violations of Federal Rule of Criminal
Procedure 16 and Brady v. Maryland, 373 U.S. 83 (1963). The defendant’s motion also includes a
claim that the defendant is “unable to open” documents provided by the FBI “via Cellebrite.” Filing
172 at 3. Significantly, the defendant states that he is “not requesting continuance of trial,” Filing
173 at 6, and he is not requesting “sanctions, suppression, or dispositive relief at this stage,” Filing
173 at 1. Instead, he “seeks disclosure and clarification only.” Filing 173 at 1.
As ordered by the Court, the Government filed a timely response to the Defendant’s motion.
Filing 176. The defendant then filed a reply brief that includes six exhibits. Filing 178; Filing 178-
2; Filing 178-3; Filing 178-4; Filing 178-5; Filing 178-6; Filing 178-7. The Government
subsequently filed a Motion to Strike Defendant’s Reply Brief, Filing 180, and a brief in support of
its motion, Filing 181.
1 After the defendant retained new counsel on October 16, 2025, he requested an extension of the pretrial motion
deadline. See Filing 88; Filing 91. The Court granted the extension and set a pretrial motion deadline of November 5,
2025. Filing 103. The Court further extended the deadline on a limited basis, ruling that the defendant had until
November 19, 2025, to file any pretrial motions related to specific discovery that the Government had recently disclosed.
Filing 131.
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II. ANALYSIS
A. The Defendant’s Motion to Compel Disclosure
The Court begins with the defendant’s Motion to Compel Disclosure and For In Camera
Review [Regarding] Electronic Communications. Filing 172. This motion was filed well after the
pretrial motion deadline and the deadlines and extensions provided by this Court to file motions
relating to discovery. Filing 103; Filing 131. The motion also fails to comply with the Court’s local
rule governing the form of discovery motions and motions to compel disclosure of evidence. See
NECrimR 12.3(b)(3). For these reasons alone, the defendant’s motion is denied. However, the Court
will also deny the defendant’s motion on the alternative ground that it is meritless, and the Court
will therefore deny the defendant’s request for an in camera review.
1. 	The First “Discovery Issue”
The Court turns to the first “discovery issue” identified by the defendant. The defendant
explains that at the time of his arrest in February 2024, the Government executed a search warrant
and seized his electronic devices. Shortly thereafter, the Government extracted data from the
defendant’s devices, and that data extraction yielded less than 100 emails from the defendant’s
primary mail account, Bryce@BVBuilders.us. The defendant states that the Government extracted
approximately 2,000 total emails from his devices “and 90% of the emails are personal emails.”
Filing 172 at 2. The defendant claims that the Government “should have known that there should
have been more emails,” and he specifically points to a “preservation request” that the Government
issued to Google in December of 2023 as evidence of the Government’s “recognition that
Defendant’s business email communications were relevant to its investigation.” Filing 172 at 2;
Filing 173 at 2. Although the defendant states that attorneys for the Government have already
“confirmed there were no more emails,” he wants the Court to order the Government to further
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confirm “that it did not otherwise obtain the emails pursuant to the preservation request.” Filing 172
at 2; Filing 173 at 4. He also asks the Court to order the Government to “turnover the documents or
give written certification of the chain of custody.” Filing 172 at 3.
In response, the Government acknowledges that it sent a preservation letter to Google in
December 2023, but it counters that “just because a preservation letter was sent does not mean the
government later sought to obtain the records with a search warrant.” Filing 176 at 2. The
Government explains that “[a] search warrant for those records was not sought and so the
government does not have a production from Google of any emails Google may have preserved in
response” to the preservation request. Filing 176 at 2. The Government further represents that it “has
already informed the defense of this fact in phone conversations and in email.” Filing 176 at 2.
Regarding the number of emails from the Bryce@BVBuilders.us address yielded during the
Government’s data extraction, the Government states that its understanding is “that Nolde lost or
damaged his phone, and obtained a new phone, not long before the government executed the search
warrant at his residence and seized his devices” and that “is most likely why there were not more
emails found in his phone.” Filing 176 at 2. Regardless, the Government avers that it “has produced
what it has.” Filing 176 at 2. In his reply brief, the defendant argues for the first time that “[r]eliance
on a partial device extraction while leaving preserved server-side data uncollected does not relieve
the Government of its obligations under Rule 16 and Brady.” Filing 178 at 3. This contention is
unsupported, and the defendant’s first “discovery issue” is meritless.
The defendant believes the Government should have executed a search warrant on Google
because documents and emails held by Google might be of some value to the defendant’s defense.
Neither Rule 16 nor Brady obligate the Government to execute search warrants on the defendant’s
behalf, and the Government certainly is not obligated to “explain the basis for [its] decision not to
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obtain the data from Google.” Filing 173 at 5. See also United States v. Crump, No. 20-232(31)
(JRT/DTS), 2023 WL 7115001, at *1 (D. Minn. Oct. 27, 2023) (recounting the court’s prior denial
of the defendant’s motion alleging prosecutorial violations of Brady and Rule 16 because although
the defendant “believed that the prosecution should have . . . executed a separate search warrant” to
access her emails, the government “had no obligation to execute search warrants on [the
defendant’s] behalf; its sole obligation was to turn over exculpatory evidence in its possession”).
Rule 16 requires the Government to disclose “any relevant written or recorded statement by the
defendant if . . . [the] statement is within the government’s possession, custody, or control” and if
“the attorney for the government knows—or through due diligence could know—that the statement
exists.” Fed. R. Crim. P. 16 (a)(1)(B)(i). Similarly, Brady imposes upon the Government “an
affirmative duty to disclose evidence that is favorable to the accused and material to either guilt or
punishment,” as long as that evidence is in the Government’s possession or the Government is aware
of it. United States v. Heppner, 519 F.3d 744, 750 (8th Cir. 2008). “[T]he government has no
affirmative obligation to discover potentially exculpatory information which it neither possessed
nor was aware of.” United States v. Turner, 104 F.3d 217, 220 (8th Cir. 1997) (internal quotation
marks omitted) (quoting United States v. Hawkins, 78 F.3d 348, 351 (8th Cir. 1996)). The
Government has confirmed multiple times—in statements to the defendant and in statements to the
Court—that it has disclosed all of the evidence in its possession. The Court will not order the
Government to further certify this fact.
As to the defendant’s request that the Court order the Government to “supply [him] with the
chain of custody for the electronics seized from [him],” this is an issue that has already been dealt
with at length. Filing 173 at 4. As the Court noted in a prior order, when United States Magistrate
Judge Ryan C. Carson agreed—at the defendant’s request—to order the Government to return the
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defendant’s remaining electronic devices to him, Judge Carson also ordered the parties to “confer
concerning any necessary stipulation on chain of custody or other related issues post haste.” Filing
164 at 13; Filing 73 (Text Minute Entry). The purpose of Judge Carson’s order was to prevent
exactly this issue from arising at trial. Judge Carson reiterated his chain of custody order at a later
hearing, Filing 81 (Text Minute Entry), and the Court further reminded the parties of their obligation
to confer about any necessary chain of custody stipulations prior to trial in a previous order, Filing
164 at 13. The defendant asked that his electronic devices be returned to him. Judge Carson
accommodated the defendant’s request. The defendant cannot now raise chain of custody issues in
an attempt to “stick it to the Government” while reaping the benefit of the prior decision allowing
him to have his devices back.
2. 	The Second “Discovery Issue”
The second “discovery issue” raised by the defendant is his belief that the Government “was
still monitoring accounts of [the defendant]” even after it returned the defendant’s cell phone to him
in March 2024. Filing 172 at 2. Specifically, the defendant explains that “[i]n discovery produced
by the government using Axiom software, Defendant identified communications between him and
his spouse and other communications dated into 2025, well after Defendant’s phone was returned
to him in March 2024.” Filing 173 at 2–3. The defendant does not identify the “post-return”
communications he takes issue with, but he does note that attorneys for the Government have told
him that “no wiretap was obtained in this case.” Filing 172 at 2. The defendant asks the Court to
order the Government to “certify how and under what authority it is able to continue to monitor the
accounts of Nolde almost a year after his indictment.” Filing 172 at 3. Without citing any supporting
case law or other authority, the defendant asserts that “[t]he Government must disclose the source
and authority for post-return text messages in its possession.” Filing 173 at 5 (emphasis omitted).
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He asks the Court to enter an order “requiring the government including the FBI to explain about
the wiretap document and provide an[y] supporting affidavits to obtain the wiretap and the duration
of the wiretap,” along with the “legal authority for the wiretap.” Filing 172 at 3. The Government’s
response is that no wiretap was obtained in this case and the defendant “has not provided any
examples of such communications, and the government does not know what he is referring to.”
Filing 176 at 3.
The defendant’s request for an order requiring the Government to “explain about the
wiretap” is denied. The Government has confirmed multiple times—in statements to the defendant
and in statements to the Court—that there was no wiretap in this case. The defendant’s request for
an order requiring the Government “to certify how and under what authority it is able to continue to
monitor the accounts of Nolde almost a year after his indictment” is also denied. The Defendant has
provided no authority in support of this request and he has not identified the “post-return”
communications he takes issue with. Furthermore, the Government’s handling of the defendant’s
electronic devices has been discussed, debated, clarified, and disclosed on many occasions
throughout the life of this case. In a prior order, the Court outlined in significant detail the procedural
history of the Government’s “filter review” of the defendant’s nine electronic devices. See Filing
164. Judge Carson devoted many months and multiple conferences to hearing and addressing the
parties’ concerns with the filter review process and ensuring a solution that both parties agreed to.
Although these discussions occurred while the defendant was represented by a different attorney,
the defendant’s current counsel cannot pretend they did not occur or that they do not apply to his
present representation of the defendant.
As the Court explains below, it is striking the defendant’s reply brief for its violations of the
Court’s deadlines and trial orders. However, even if the Court were to consider the defendant’s
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arguments and exhibits in his reply brief, the Court would still deny the defendant’s requests related
to this second “discovery issue.”
The defendant’s reply brief identifies for the first time the “post-return text messages” that
the Government allegedly had access to after it completed the data extraction of some of the
defendant’s electronic devices. See Filing 178-3. While this allegation certainly could have been
investigated if the defense had raised it at some point during the months or years the defendant has
had this discovery—or even at some point in the month or two after the defendant’s new counsel
made his appearance in this case in October 2025 and received access to those documents—it is too
late to bring this up now. This Court’s prior orders required this to be addressed long ago. Further,
none of the “post-return” documents appear on the Government’s exhibit list, there is no credible
allegation the Government will use such data at the trial, and any claim that the Government
inappropriately peeked at anything is nothing more than speculation. See Filing 169.
In the Court’s experience it is rare that discovery extractions and productions go perfectly in
any criminal case. Indeed, the authenticity of extracted communications may be challenged at trial,
and issues with the extraction might be brought up on cross examination of the individual who
extracted the devices. However, just because something may have gone wrong, such as some
additional emails somehow getting downloaded that should not have been, does not mean this
materially impacts the constitutional rights of the defendant. See United States v. Ward, 140 F.4th
945, 953 n.9 (8th Cir. 2025) (explaining that an error in “administrating the discovery rules is
reversible only if the error is shown to prejudice the substantial rights of the defendant”). Nor does
it mean the Court is required to look into such claims at the eleventh hour before a trial. The
defendant had his chance to investigate this but missed it. The defendant falls far short of convincing
the Court the remedies he seeks here are appropriate at this late hour.
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3. 	Viewing the Discovery
Finally, the defendant claims that he is unable to open documents that have been provided
to him by the FBI “via Cellebrite.” Filing 172 at 3. He states that he was “provided a new Cellebrite
link,” but that “[s]ome of the documents recovered from [his] devices are still not able to be viewed.”
Filing 172 at 3. The defendant asks the Court to order the Government “to provide a proper viewer
to access any remaining records.” Filing 172 at 3. He does not elaborate on his apparent issues to
view produced documents in his supporting brief. In response, the Government explains that
“[w]henever data is extracted from phones, some files may not be viewable for a variety of reasons,
including the file becoming corrupted, or having been moved or deleted from the device before the
device was seized.” Filing 176 at 2–3. The Government further argues that the defendant’s “inability
to open some files in the extraction is not a Rule 16 or Brady issue since Nolde possesses the data
the government extracted from his phone.” Filing 176 at 3. The Government identifies “[a]nother
problem with Nolde’s complaint,” namely, that he possesses the actual electronic devices that any
documents were extracted from. Filing 176 at 3.
The Court agrees with the Government that this issue is not properly addressed under Rule
16 or Brady. Even if this was a discovery issue under Rule 16, the Court’s local rules provide that a
“motion seeking discovery or disclosure of evidence must include a statement verifying that (A) the
moving party’s attorney conferred with the opposing attorney in person or by telephone in a good-
faith effort to resolve the issues raised in the motion and (B) the parties were unable to reach an
agreement.” NECrimR 12.3(b)(3). “This showing must also state the date, time, and place of the
communications and the names of all participating persons.” Id. Apart from being filed well beyond
the pretrial motion deadline and the deadline for any other motions as set out in the Court’s Final
Trial Order, the defendant’s motion also plainly does not comply with the Court’s local rules.
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Moreover, even if the Court were to consider the defendant’s reply brief, that document reveals that
the defendant’s real issue with the Government’s discovery is that some of the discovery has been
produced in the form of “raw forensic data.” Filing 178 at 10. The defendant claims in his reply
brief that “Rule 16 requires the Government to provide discovery in a form that permits meaningful
review and use in preparing the defense” but he cites no authority for that proposition. Filing 178 at
10. The reality is the Government has provided the discovery it possesses to the defendant and it
has accommodated the defendant’s request for a new Cellebrite link. If the defendant wanted to
further investigate such data or investigate what the Government should or should not have done
with the data, the defendant could have done so months ago. Further, pursuant to an order that rarely
happens in criminal cases, the Defendant was given back all of his electronic devices and could have
investigated the data on those devices himself. Indeed, it was the Court’s understanding based on
the defendant’s former counsel’s representations that the defendant intended to do just that.
B. The Government’s Motion to Strike Defendant’s Reply Brief
The Government moves to strike the defendant’s reply brief on the grounds that it contains
“new issues, actual specific arguments missing from his original motion and brief, and new evidence
all which were never previously presented” and therefore violates “the local rules of this Court and
prior Court orders entered in this matter.” Filing 180 at 1; Filing 181 at 3. The Court agrees.
The Court has reviewed the defendant’s Motion to Compel Disclosure and his accompanying
brief, the Government’s response, and the defendant’s reply brief and has noticed that the
defendant’s reply raises new legal arguments not previously addressed in the motion or supporting
brief, provides facts not previously included in the motion or supporting brief, contains exhibits not
previously attached to the motion or supporting brief, and even seeks relief not previously sought in
the motion or supporting brief. For instance, the defendant’s motion and supporting brief contend
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only that the Government has violated Rule 16 and Brady, while the defendant’s reply brief claims
that the Government has violated Rule 16, Brady, Rule 41 of the Federal Rules of Criminal
Procedure, the Fourth Amendment to the United States Constitution, and the attorney-client
privilege. The defendant’s motion and supporting brief include minimal facts underlying the two
“discovery issues” he identifies therein, but his reply brief provides “factual clarification” that
significantly expands the factual background for his claim that the Government has produced “post-
return text messages.” The defendant did not attach any exhibits to his motion or supporting brief—
for example, he did not identify or otherwise provide any of the discovery items he believes the
Government accessed after it concluded its review of his devices—but he attached six exhibits to
his reply brief. The defendant’s motion and supporting brief also explicitly state that he is not
requesting “sanctions, suppression, or dispositive relief at this stage,” while his reply brief asks the
Court to “suppress any evidence it deems was illegally accessed or obtained.” Filing 178 at 11. In
short, the defendant’s reply brief serves as a new motion and brief in one. This is impermissible for
multiple reasons.
First, to the extent the defendant’s reply brief raises new substantial issues of law—which it
does—those issues are untimely raised. The Court’s Final Trial Order, entered on January 13, 2026,
requires that:
All pretrial motions must follow the deadlines and procedures set forth in NECrimR
12.3. Except for good cause shown, all other motions in criminal cases that are not
already subject to preexisting deadlines must be filed with the Court no later than
five (5) days before the first day of trial. Failure to comply with this order may result
in waiver of the issue(s) raised in the motion. See Fed. R. Crim. P. 12(c); United
States v. Trobee, 551 F.3d 835, 838 (8th Cir. 2009).
Filing 165 at 1 (emphasis in the original). The defendant’s reply brief raising new constitutional
issues and seeking new relief was filed less than four days before the first day of trial. This is long
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past the pretrial motion deadline, which the Court previously extended twice at the defendant’s
request. This is also past the deadline set forth in the Final Trial Order. Moreover, the defendant has
not shown good cause for filing a motion so close to trial—much less a motion that he attempted to
conceal in a reply brief. Nor could the defendant show good cause based on the arguments and
evidence set forth in his reply brief. As the Government points out, everything the defendant argues
in his reply brief he could have argued in his initial motion and supporting brief. In fact, everything
the defendant argues in every filing related to his Motion to Compel Disclosure he could have argued
well before the November 2025 pretrial motion deadline. The defendant claims his motion is
“prompted by newly discovered evidence obtained during a brief access window on March 1, 2024,”
but even this statement alone reveals that his motion is based on things that occurred nearly two
years ago. Filing 178 at 9. The defendant certainly could have conducted a “renewed examination
of the Government’s production” well before the week before trial. Filing 178 at 9.
III. CONCLUSION AND ADMONITION
For the foregoing reasons, the defendant’s motion is denied and the Government’s motion
is granted. As the defendant has made sure to remind the Court on multiple occasions, this case has
been pending for nearly two years. The defendant has claimed that he has been ready to go to trial
since June 12, 2025. He has complained his speedy trial rights were violated, even though that
contention had no merit. Even now, the defendant assures the Court that he is not seeking a
continuance of trial yet less than six days before trial is scheduled to begin, he files a motion based
on facts and evidence that have been in his possession for months if not years. This is inappropriate,
especially considering that the defendant was able to file six other pretrial motions without any
apparent issue, and it directly contravenes the Court’s orders setting pretrial motion deadlines. See
Filing 84; Filing 85; Filing 103; Filing 131; Filing 165.
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The Court cannot help but note that it has now issued multiple orders—totaling 116 pages
of writing in the past two weeks alone—addressing 12 total motions, 9 of which were defense
motions, many of which would be considered frivolous and sanctionable in a civil proceeding.
The defendant suggests in the 9 motions he has filed in this case that the Government
concealed documents, peeked at things it should not have, filed charges without adequate support,
violated the defendant’s speedy trial rights (while the defendant at the same time continually
requested continuances), conducted illegal surveillance against the defendant, pursued the defendant
in a vindictive manner, or somehow otherwise acted inappropriately. The Court has found most of
these contentions to be meritless. Although the defense might contend this litigation effort was to
“make a record” in this case, the Court does not see how the vast majority of the record made with
these filings could possibly help the defendant or his defense to the wire fraud charges at issue.
The Court has found nothing in this case that has been remotely close to the defendant’s
allegations of Government conduct that materially violates any of the defendant’s rights.
The Court has grown tired of baseless contentions and allegations against the Government.
This case will be tried on admissible evidence and the law the Court will instruct the jury to follow.
Accordingly,
IT IS ORDERED:
1. The Defendant’s Motion to Compel Disclosure and For In Camera Review [Regarding]
Electronic Communications, Filing 172, is denied; and
2. The Government’s Motion to Strike Defendant’s Reply Brief, Filing 180, is granted.
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Dated this 24th day of January, 2026.
BY THE COURT:
_________________________
Brian C. Buescher
United States District Judge
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