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United States v. Smith

United States District Court, D. New Mexico

May 16, 2017

RAY L. SMITH, et al. Defendants.


         THIS MATTER comes before the Court upon Defendant's Motion for Order Compelling Specific Discovery, filed March 31, 2017 (Doc. 116). Defendant seeks an order compelling the Government to disclose additional discovery, under Brady v. Maryland, 373 U.S. 83 (1963); Giglio v. United States, 405 U.S. 150 (1972), Kyles v. Whitley, 514 U.S. 419, 437 (1995) and Fed.R.Crim.P. 16.[1] Having reviewed the parties' briefs and applicable law, the Court has determined that Defendant's motion is DENIED with respect to the request for raw phone data. As for the portion of Defendant's Motion seeking to compel discovery on controlled substance analogue material, the Court DENIES this request but such denial is without prejudice to Defendant re-filing his motion for discovery on controlled substance analogue material at the appropriate time.


         Defendant owned stores in Tucumcari, New Mexico, Las Vegas, New Mexico, Raton, New Mexico, and Kingman, Arizona. At these stores, Defendant sold drug and smoking paraphernalia, body jewelry, sex toys, tobacco products, and most significantly according to the Government, synthetic cannabinoids, a Schedule I controlled substance known colloquially by the monikers “Spice” or “herbal incense.” On February 9, 2016, a federal grand jury returned a four-count indictment against Defendant and his co-defendant, accusing Defendant of conspiring to distribute Schedule I controlled substances and controlled substance analogues in violation of 21 U.S.C. §§ 802(32), 813, 841, and 846; maintaining a drug-involved premises in violation of 21 U.S.C. § 856(a); aiding and abetting in violation of 8 U.S.C. § 2; and conspiracy to launder monetary instruments, in violation of 18 U.S.C. § 1956(h) (Doc. 2).

         Defendant seeks additional discovery in the form of raw phone data and evidence relevant to controlled substance analogues.

         I. Relevant Law

         In Brady v. Maryland, 373 U.S. 83, 87 (1963), the Supreme Court explained that “the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.” The standard for determining materiality for Brady purposes is well established. Under Brady, the “touchstone of materiality is a ‘reasonable probability' of a different result, ” which exists “when the government's evidentiary suppression ‘undermines confidence in the outcome of the trial.'” Trammell v. McKune, 485 F.3d 546, 551 (10th Cir. 2007). “The question is not whether the defendant would more likely than not receive a different verdict with the evidence, but whether in its absence he would receive a fair trial, understood as a trial resulting in a verdict worthy of confidence. Kyles v. Whitley, 514 U.S. 419, 434 (1995) (citing Bagley, 473 U.S. at 678).

         The Government's duty includes “a duty to learn of any favorable evidence known to the others acting on the government's behalf in the case, including the police.” Kyles v. Whitley, 514 U.S. 419, 434 & 437 (1995); see U.S. v. Velarde, 485 F.3d 553, 559 (10th Cir. 2007). The prosecutor has a duty to disclose Brady evidence even if they do not personally know of the evidence. Velarde, 485 F.3d at 559. The prosecutor's duty encompasses impeachment evidence as well as exculpatory evidence. United States v. Bagley, 473 U.S. 667, 676 (1985); Nuckols v. Gibson, 233 F.3d 1261, 1267 (10th Cir. 2000); see also Giglio v. United States, 405 U.S. 150, 153 (1972) (prosecution's disclosure obligation extended to evidence that is useful to the defense in impeaching government witnesses, even if the evidence is not inherently exculpatory). Failure to disclose impeachment evidence violates Brady when a witness's credibility is material to the question of guilt. United States v. Buchanan, 891 F.2d 1436, 1443 (10th Cir. 1989).

         Fed.R.Crim.P.16 (1)(1)(E) requires the Government to disclose “books, papers, documents, data, photographs, tangible objects, buildings or places, or copies or portions of any of these items” that are material to preparing the defense, as well as reports of examinations and tests. Rule 16(a)(1)(E(i) & (F)(iii). Rule 16 is “broader than Brady” in that it mandates disclosure of any material information, whether exculpatory or not. U.S. v. Muniz-Jaquez, 718 F.3d 1180, 1183 (9th Cir. 2013). Under Rule 16, the “materiality” standard is “not a heavy burden” and means that there is a strong indication that the evidence will “play an important role in uncovering admissible evidence, aiding witness preparation, corroborating testimony, or assisting impeachment or rebuttal.” U.S. v. Felt, 491 F.Supp. 179, 186 (D.D.C. 1979); U.S. v. Lloyd, 992 F.2d 348, 353-53 (D.C.Cir. 1993) (remand in case of aiding and abetting of false tax returns of government witnesses since similarities might have tended to show that falsities originated with tax payer instead of defendant).

         The Government argues that disclosure under Rule 16(a)(1) must be considered against the backdrop of Fed.R.Crim.P. 16(a)(2) which exempts two categories of materials from the broad disclosure requirements of Rule 16. The first category pertains to: “reports, memoranda, or other internal government documents made by an attorney for the government or other government agent in connection with investigating or prosecuting the case, ” and statements of government witnesses.” This provision has a function similar to the work product doctrine in the civil context. See United States v. Noble, 422 U.S. 225, 238 (1975)(describing as “vital” the role of the work product doctrine in “assuring the proper functioning of the criminal justice system”); see also Fort, 472 F.3d at 1115-16 (stating, “Rule 16(a)(2)'s protection of investigative materials extends beyond the work product privilege as defined in the civil context” and noting that Rule 16(a)(2)'s drafters intended the Rule to be “related to the work product doctrine but not synonymous or coextensive with it”).[2]

         The second category of material exempted from disclosure under Rule 16 includes statements by government witnesses. The second sentence of Rule 16(a)(2) states: “Nor does this rule authorize the discovery or inspection of statements made by prospective government witnesses except as provided in 18 U.S.C. § 3500 (the Jencks Act).” Fed. R. Crim. P. 16(a)(2). The Government points out that the logical implication of this provision is that statements of non-testifying witnesses are not subject to disclosure under Rule 16.

         Defendant seeks disclosure of two categories of material: (1) evidence on which the Government purportedly relied to apply for search warrants and wiretap applications in this case; and (2) material relevant to controlled substance analogues. The Government contends either that Defendant is not entitled to the material, or that the issue is not ripe for litigation.

         II. Search Warrant & Wiretap Material (see Doc. 116, pp 11-12)

         Defendant points out that he would not be able to meet his burden under Franks v. Delaware, 438 U.S. 154 (1978) in challenging a search warrant application if he is denied the evidence on which the issuing magistrate relied to issue the search warrant. Defendant observes that the Government has certain tactical advantages over the accused, having greater financial and staff resources and an advantages in information-gathering techniques, and the ability “to search private areas and seize evidence” with probable cause. Wardius v. Oregon, 412 U.S. 470, 475 n.9 (1973); see also Young v. United States, 481 U.S. 787, 813 (1987) (prosecution “has the power to employ the full machinery of the state in scrutinizing any given individual”).

         A. Rule ...

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