United States District Court, D. Arizona
ORDER
MICHAEL T. LIBURDI UNITED STALES DISTRICT JUDGE
Pending
before the Court is a Discovery Motion filed by Defendant
Kenneth K. Losch, wherein Defendant makes requests for 27
categories of discovery. (Doc. 59.) The Court only addresses
the categories of discovery that are presently in dispute and
refers to each discovery request by the number assigned in
Defendant's Discovery Motion.
1.
Defendant's Statements.
In his
Discovery Motion (Doc. 59, at 2), Defendant moves for
production of various written and recorded statements made by
him, which the Court previously ordered the Government to
disclose by July 1, 2019 (Doc. 37.) Defendant also requests
“notice of any statements by him which the Government
intends to offer at trial…” (Doc. 59, at 2.) The
Government responds (Doc. 70, at 4) that it has disclosed the
undercover recordings of Defendant, and that it has no other
Rule 16 material in its possession to produce.
Federal
Rule of Criminal Procedure 12(b)(4)(B) permits the defendant
to request notice of the government's intent to use (in
its evidence-in-chief at trial) any evidence that the
defendant may be entitled to discover under Rule 16. Fed. R.
Crim. P. 12(b)(4)(B). See also LRCrim 16.1(a)
(requiring notice of statements of the Defendant which the
Government intends to use during the course of trial).
Defendant's request for the Government to provide notice
of any statements by him that the Government seeks to use is
granted. If the Government seeks use at
trial any of Defendant's statements that are discoverable
pursuant to Rule 16, the Government shall identify the
statements and provide notice to Defendant of its intent to
use them by January 20, 2020. If Defendant
has any objections to the admissibility of such statements,
Defendant shall file a motion setting forth his objections,
consistent with the deadline for filing pretrial substantive
motions. See (Doc. 37); LRCrim 16.1(b).
2.
Brady Material
Defendant
makes a general request (Doc. 59, at 2) for disclosure of all
evidence favorable to Defendant on the issue of guilt,
including all impeachment and exculpatory evidence, in
accordance with Brady v. Maryland, 373 U.S. 83
(1963). Defendant also makes specific requests for two
categories of evidence under Brady: 1) all
information related to Special Agent William Lace's
counterintelligence briefing at AGI on August 20, 2013,
including a notebook that might contain Special Agent
Lace's notes of the tour (Doc. 59, at 3); and 2) all
documents, statements, reports, and tangible evidence
regarding C.H.'s[1]communication with the United States
Attorney's Office regarding the legitimacy of AGI (Doc.
59, at 3). Only the first category is in
dispute.[2]
In
response to Defendant's request (Doc. 59, at 3) for
“[a]ll documents, statements, reports, and tangible
evidence regarding FBI Special Agent William Lace's
August 20, 2013 counterintelligence briefing provided to AGI,
” the Government states that it has produced the
PowerPoint presentation given by Special Agent Lace at AGI in
2013, as well as the “theft file” regarding
Special Agent Lace's (now closed) investigation into a
theft allegation by one of AGI's principal investors.
(Doc. 70, at 4); (Doc.72-4, at 3.) The Government also
produced a summary of a conversation that prosecutors had
with Special Agent Lace, wherein Special Agent Lace described
his previous interactions with AGI and his recollections of
the AGI tour, including what he observed while on the tour.
(Doc.72-4, at 3.) Special Agent Lace, who is presently
detailed to Washington, [3] also told prosecutors that he
“might have some notes [about the 2013 AGI tour] in a
notebook in Phoenix.” (Doc. 72-4, at 3.) Prior to his
interview with prosecutors, Special Agent Lace performed a
search within the FBI's electronic system and determined
that there were no electronically stored notes pertaining to
his 2013 AGI tour. (Doc. 72-4, at 3.) But the Government has
not, to date, instructed Special Agent Lace to review his
notebook, even though the Government and Special Agent Lace
both know the precise location of the notebook.
(Id.)
a.
The Notebook
Defendant
argues that the notebook “very likely contain[s]
exculpatory evidence, including but not limited to, evidence
regarding AGI's technology…, statements from
witnesses, or Rule 16(a)(1)(A) statements from Mr.
Losch.” (Doc. 72, at 4.) Defendant maintains that to
the extent the notebook contains notes about AGI's
technology, the notebook is material because the Government
“has squarely placed in issue” the validity of
AGI's technology during that time frame. (Doc 72, at 5.)
The Government indicates, however, that it “decline
[sic.] to search for notes that might not exist.” (Doc.
70, at 4, n.1.)
The
holding in Brady v. Maryland requires disclosure
only of evidence that is both favorable to the accused and
“material either to guilt or to punishment.”
United States v. Bagley, 473 U.S. 667, 674 (1985),
citing Brady v. Maryland, 373 U.S. 83, 87 (1963).
Kyles v. Whitley further holds that the prosecution
has an affirmative duty to learn of, and disclose, any
favorable evidence known to “others acting on the
government's behalf in this case, including the
police.” Kyles v. Whitley, 514 U.S. 419, 437
(1995). The Brady rule extends to impeachment
evidence as well as exculpatory evidence. Youngblood v.
West Virginia, 547 U.S. 867, 869 (2006), citing
Bagley, 473 U.S. at 676. Under Brady, the
prosecutor is not required to deliver her entire file to
defense counsel, but only to disclose evidence favorable to
the accused that, if suppressed, would deprive the defendant
of a fair trial. Bagley, 473 U.S. at 675. To
challenge the government's representation that it lacks
Brady information, the defendant must either
“make a showing of materiality under Rule 16 or
otherwise demonstrate that the government improperly withheld
favorable evidence.” United States v. Lucas,
841 F.3d 796, 808 (9th Cir. 2016). A showing of materiality
under Rule 16 requires presentation of facts which would
“tend to show that the Government is in possession of
information helpful to the defense.” United States
v. Stever, 603 F.3d 747, 752 (9th Cir. 2010).
Here,
the Court finds that Defendant has made a sufficient showing
of materiality, pursuant to Federal Rule of Criminal
Procedure 16(a)(1)(E)(i), for the Court to order the
Government to review Special Agent Lace's notebook for
potential evidence it is required to disclose. The Government
does not deny that it possesses the notebook or that there
may be relevant notes inside the notebook. Defendant has
identified why Special Agent Lace's notes about the 2013
AGI tour would be material to Defendant in preparing for his
defense: the notes could support the inference that AGI's
technology in 2013 was, in fact, valid. (Doc. 72, at 3.)
Further, the Court notes that Special Agent Lace found it
important to search the FBI's electronic system for any
notes he may have made about the 2013 AGI tour. The Court
declines to treat the notebook any differently. Because the
Government has identified the precise location of Special
Agent Lace's notebook, the Court's order for the
Government to review it for potential disclosures is not
overly burdensome.
It is
therefore ordered that the Government review Special Agent
Lace's notebook by November 25, 2019. If
the Government thereafter determines that disclosure of the
notebook's contents is required pursuant to
Defendant's request under Rule 16 or Brady, the
Government shall disclose the contents consistent with
previously set deadlines or the deadlines set herein.
Defendant's motion to compel production of the notebook
at this juncture is denied without
prejudice.
b.
Communications between Special Agent Lace and the prosecution
team
Defendant
also requests (Doc. 72, at 6) that the Government disclose
all “communications by and between [Special Agent] Lace
and other members of the prosecution team about the case and
witnesses in the case.” The Government maintains that
Special Agent Lace's role in the investigation was
“limited” and that he is not part of the
prosecution team. (Doc. 70, at 4 n. 4.) Defendant disagrees,
stating that Special Agent Lace is a member of the
prosecution team because he participated in five witness
interviews and assisted with the execution of the search
warrant in December 2015. (Doc. 72, at 6.)
It is
ordered that by 5:00 p.m. on November 12,
2019, the parties shall file simultaneous
supplemental briefs, not to exceed 3 pages, on this issue.
No. Responses or Replies shall be filed. The simultaneous
supplemental briefs must address: 1) the precise extent and
timing of Special Agent Lace's role in the investigation;
2) Ninth Circuit case law regarding disclosure of
communications among members of the prosecution team; and 3)
the Government's disclosures to date of communications
between Special Agent Lace and members of the prosecution
team.
c.
Deadline for Brady disclosures
Finally,
Defendant asks this Court to enter an order for the
Government to disclose all Brady material
(exculpatory and impeachment) by December 2, 2019 (Doc. 72,
at 6). The Government responds (Doc. 70, at 3) that its
“position [is] to produce exculpatory information
reasonably promptly after discovery” but that
“Brady impeachment material is typically
disclosed closer to trial.” The ...