United States District Court, D. Arizona
Honorable Steven P. Logan United States District Judge
the Court is Defendant Andrew Padilla's
(“Padilla”) Motion for Itemization of
Brady/Giglio Material (the
“Motion”). (Doc. 273) The Motion was fully briefed on
September 18, 2018, and the Court heard oral argument at a
hearing on October 5, 2018. For the reasons set forth below,
the Motion is denied.
March 28, 2018, a federal grand jury returned a ninety-three
count indictment against several Defendants, including
Padilla, alleging that the Defendants engaged in various
crimes related to the operation of the website Backpage.com,
including conspiracy, facilitating prostitution, and money
laundering. (Doc. 3) The charges against the Defendants were
based on their work at Backpage.com (“Backpage”).
(Doc. 273 at 2)
alleges that the Government began its investigation into
Backpage approximately 5 years ago. (Doc. 273 at 2) On May
29, 2018, the Government disclosed to defense counsel two
external hard drives of information, which the Government
acknowledges contains approximately 10.4 million documents.
(Doc. 273 at 2; Doc. 294 at 5) The Court held a status
conference on April 30, 2018, at which all parties present
agreed to this form of discovery disclosure. (Doc. 294 at 4)
August 20, 2018, Padilla filed the Motion seeking an order
from the Court requiring the Government to produce an
itemized list of the exculpatory documents present in the
discovery provided to the Defendants. (Doc. 273 at 5) The
Government has declined to provide the Defendants a list of
the Brady material present in the discovery, arguing
that the discovery at issue was produced in an
industry-standard, searchable format within the time required
by the Court. (Doc. 273 at 2, 4; Doc. 294 at 4-6) The
Government argues that Brady does not require it to
parcel through discovery materials in order to separate and
identify anything favorable or helpful to the defense. (Doc.
294 at 7) In reply, Padilla argues that without itemization,
the Defendants will not have equal access to discovery. (Doc.
310 at 6-7, 2, 8) On October 5, 2018, the Court heard
argument on the pleadings, and the arguments made by each
party were taken under advisement.
Government has limited discovery obligations. Rule 16 of the
Federal Rules of Criminal Procedure requires the Government
to, upon a defendant's request, provide or allow the
defendant access to documents and objects in the
Government's possession. Under Rule 16, the Government
must disclose any oral or written statements made by a
defendant, the defendant's prior record, any items that
are material to preparing the defense, items that the
Government intends to use in its case-in-chief, and items
that were obtained from or belong to the defendant. Fed.
R.Crim. Pro. 16.
process clauses of the Fifth and Fourteenth Amendments to the
Constitution, as interpreted by the United States Supreme
Court in Brady v. Maryland, require the prosecution
to learn of and disclose to the defense any exculpatory or
impeachment evidence favorable to the accused that is in the
prosecution's possession. Brady v. Maryland, 373
U.S. 83, 87 (1963). Brady places an affirmative duty
on the prosecutor to seek out information in the
government's possession that is favorable to the
defendant; here, the Government has the duty to affirmatively
review its discovery materials in order to determine and
acquire those materials which would be considered
Brady exculpatory and Giglio impeaching
materials. United States v. W. R. Grace, 401
F.Supp.2d 1069, 1075-76 (D. Mont. 2005); Kyles v.
Whitley, 514 U.S. 419, 437 (1995); United States v.
Price, 566 F.3d 900, 908-909 (9th Cir. 2009).
Giglio requires the Government to disclose
impeachment evidence, including all promises, inducements, or
threats made to a witness in order to gain the cooperation of
that witness in the investigation or prosecution of the
defendant. Giglio v. United States, 405 U.S. 150,
154 (1972). However, the Government has no obligation to
“single out” particular pieces of exculpatory
evidence that are beneficial to the Defendants. Rhoades
v. Henry, 638 F.3d 1027, 1039 (9th Cir. 2011).
well settled that courts have the discretion to order the
Government to identify Brady material for the
defense as a matter of case management and fairness.
United States v. Salyer, 2010 WL 3036444, at *2
(E.D. Cal. Aug. 2, 2010) (citing W R Grace, 526 F.3d
at 509-510). This is so even though there is no direct
obligation for the Government to identify or itemize Brady
material for the defense. Rhoades v. Henry, 638 F.3d
at 1039 (stating that there is no authority for the
proposition that the government's Brady obligations
require it to point the defense to specific documents within
a larger mass of material that it has already turned over).
When deciding whether itemization of Brady material is
required in circumstances of voluminous discovery, courts
have held that the Government meets its Brady
obligations when it provides discovery materials in a
searchable electronic format with indices describing the
documents contained therein. W. R. Grace, 401
F.Supp.2d at 1080; United States v. Weaver, 992
F.Supp.2d 152, 156 (E.D.N.Y. 2014). Courts have also
considered the relative position of the defendant requesting
identification of Brady material, such as (i) a
defendant's access to counsel, (ii) whether the defendant
is incarcerated, (iii) a defendant's access to resources,
(iv) a defendant's ability to participate in the
preparation of his own defense, and (v) whether the interests
of multiple defendants are aligned. United States v. AU
Optronics Corp., 2011 WL 6778520, at 2 (N.D. Cal. Dec.
23, 2011); United States v. Rubin/Chambers, Dunhill Ins.
Servs., 825 F.Supp.2d 451, 456 (S.D.N.Y. 2011).
Padilla nor the Government points the Court to controlling
precedent on the issue of whether the Court should require
the Government to identify Brady material for the Defendants.
However, based on the aforementioned factors considered by
other courts, the Court finds that the Government has met its
burden of disclosure and should not have to take the
additional step of itemizing Brady materials for the
Defendants. The Government states that it has provided
defense counsel with two hard drives of discovery, amounting
to approximately 10.4 million pages of documents, in
searchable electronic format. (Doc. 294 at 5) The Government
also (i) provided the Defendants with indices with
descriptions and bates numbers for the documents, (ii)
provided the Defendants with a subset of “hot”
documents related to the allegations in the indictment, (iii)
directed the Defendants to the specific Backpage.com ads
referenced in the indictment, and (iv) provided access to a
Department of Justice discovery specialist to assist the
Defendants with any technical questions. (Doc. 294 at 1-2)
The Court finds that the method by which discovery was
produced and the additional amenities provided to the
Defendants, along with the fact that trial is at least 12
months away, weighs against the Court requiring the
Government to take the additional step of itemizing
Brady and Giglio material for the
relies heavily on the Salyer case to argue that
voluminous discovery requires itemization of Brady
material from the Government. United States v.
Salyer, 2010 WL 3036444 (E.D. Cal. Aug. 2, 2010). In
Salyer, the Government submitted multiple gigabytes
of electronic information, consisting of millions of pages of
documentary information, to the defendant without identifying
any Brady materials. Id. at 3. In an
unreported opinion, the U.S. District Court for the Eastern
District of California upheld its order requiring the
Government to identify Brady and Giglio
material for the defense. Id. at 8. However, the
Court finds that this case is distinguishable from
Salyer because the defendant in Salyer was
incarcerated and without meaningful access to counsel or the
voluminous discovery provided by the Government. Id.
at 7 (identifying the defendant as “a singular,
individual defendant, who is detained in jail pending trial,
and who is represented by a relatively small defense team,
” without “access to voluntary corporate
assistance in attempting to find the documents needed by the
defense, ” and “little practical ability in the
jail setting to be of much assistance in the search as he can
do no document review, either hard copy or electronically,
absent the physical presence of counsel in the jail.”)
The circumstances present in Salyer are vastly
different from this case, as none of the Defendants are
incarcerated and each of them is zealously represented by
counsel with seemingly unlimited access to legal resources.
reliance on the U.S. v. Hsia precedent from the U.S.
District Court for the District Columbia is also misplaced
because Hsia was a traditional paper case in which
the defendant was provided with approximately 600, 000
hard-copy documents. United States v. Hsia, 24
F.Supp.2d 14, 29 (D.D.C. 1998). The method of disclosure in
Hsia was logistically distinguishable from the
searchable electronic discovery provided to the Defendants in
this case. Finally, the decision in U.S. v. Cutting
in the U.S. District Court for the Northern District of
California is distinguishable because there is no evidence
that the Government's production of discovery in this
case has had any issues that would impede the Defendants'
ability to search the documents provided in discovery.
United States v. Cutting, 2017 WL 132403, at *10
(N.D. Cal. Jan. 12, 2017). Accordingly, the Court does not
find the Salyer, Hsia, or Cutting
precedents controlling or persuasive in this case.
the Government is under no general obligation to identify
Brady or Giglio material within voluminous
discovery disclosure and Padilla has failed to persuade the
Court that an exception to this general rule is warranted
here, the Motion is denied. However, the Court notes that at
the October 5th hearing the Government stipulated that it
will turn over any Brady/Giglio material that it
comes across in the future to the ...