United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER
VÁZQUEZ UNITED STATES DISTRICT JUDGE.
MATTER comes before the Court on Mr. Perrault's Opposed
Motion to Leave to File Motion for Early Production of
Brady/Giglio and Jencks Act Materials and Formal Request for
Production of Discovery. Doc. 77, 77-1. Upon Court order, Mr.
Perrault filed a Brief in Support of Motion for Early
Production of Brady/Giglio and Jencks Act Materials to
Prepare for Trial and Formal Request for Production of
Discovery. Docs. 79, 94. The government timely responded.
Doc. 102. Having considered the motion, relevant law, and
being otherwise fully informed, the Court finds that the
motion is not well-taken and accordingly will be
March 1, 2019, Mr. Perrault filed an Opposed Motion to Leave
to File Motion for Early Production of Brady/Giglio and
Jencks Act Materials and Formal Request for Production of
Discovery. Docs. 77, 77-1. On the same date, the Court
ordered that Defense submit supplemental briefing in support
of its motion. Doc. 78.
Perrault filed a Brief in Support of his motion on March 5,
2019. Doc. 94. In it, Mr. Perrault states that the United
States has withheld material and exculpatory information. He
believes that the United States is not intending to call
“a key FBI Agent as a witness” who conducted the
June 29, 2017 interview for which defense has not been
provided the Federal Bureau of Investigation FD-302 report.
Id. at 3. Mr. Perrault contends he has been left
completely in the “dark regarding of [sic] the
grand jury testimony that was elicited.” Id.
In addition to the FD-302 from FBI Special Agent Leroy
Chavez' June 2017 interview, Defense requests that any
grand jury testimony given by John Does 2 through 9 should be
disclosed, as well as any civil complaints. Id. at
4. Mr. Perrault contends that these requests, made under
Brady, Agurs, Giglio, and the
Jencks Act, “are extremely important to the effective
and efficient preparation of trial defenses” and the
timing of their disclosure “will have an impact on the
investigation of this matter and could delay the scheduled
trial in this matter.” Id. at 5. He
specifically requests that the Court “enter an order
requiring the government to disclose Brady/Giglio and Jencks
Act material at least one 2 [sic] weeks in advance
of trial” as well as disclose discovery regarding all
of the civil complaints associated with all witnesses the
government intends to call. Id.
March 5, 2019, the Court held a telephonic hearing on
Defense's Motion in Limine to Exclude Evidence Pursuant
to Fed.R.Evid. 404(b), 413, and 414 [Doc. 40]. Doc. 93. At
the end of the conference, Defense expressed his intent to
file supplemental briefing in the instant motion, including a
request for civil complaints-and he acknowledged the issue of
the nondisclosure agreement. The government responded that
they intended to disclose the discovery it has on the civil
complaints once the Court ruled on Defense's motion [Doc.
40], in part because of the sensitive nature of the
complaints and the non-disclosure agreements.
formal Response [Doc. 102] to Defense's request, the
government argues that (1) it continues to liberally and
timely disclose any Brady material; (2) Defense is
not entitled to the early production of Jencks Act material;
and (3) Defense has not made a showing of
“particularized need” for the grand jury
materials. Nonetheless, the government intends to produce the
requested Jencks Act material ahead of trial, including any
civil complaints in its custody and control. Doc. 102 at 10.
The government “anticipates making these disclosures
approximately two weeks before trial.” Id.
Brady v. Maryland, the Supreme Court held 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.” 373 U.S. 83, 87 (1963). The
government's obligation to disclose exculpatory material
attaches regardless of whether the defendant requests such
material. See United States v. Agurs, 427 U.S. 97,
107 (1976). “[E]vidence is material only if there is a
reasonable probability that, had the evidence been disclosed
to the defense, the result of the proceeding would have been
different.” United States v. Bagley, 473 U.S.
667, 682 (1985). A “reasonable probability” is a
“probability sufficient to undermine confidence in the
outcome.” Id. The Court's
“materiality review does not include
speculation.” Banks v. Reynolds, 54 F.3d 1508,
1519 (10th Cir. 1995). Accordingly, “[t]he mere
possibility that evidence is exculpatory does not satisfy the
constitutional materiality standard.” Id.
(citation omitted); United States v. Fleming, 19
F.3d 1325, 1331 (10th Cir. 1994).
“[t]he constitution does not grant criminal defendants
the right to embark on a ‘broad or blind fishing
expedition among documents possessed by the
government.'” United States v. Mayes, 917
F.2d 457, 461 (10th Cir. 1990) (quoting Jencks v. United
States, 353 U.S. 657, 667 (1957)). As the Supreme Court
has made clear, “[a] defendant's right to discover
exculpatory evidence does not include the unsupervised
authority to search through the [government's] files. . .
. [T]his Court has never held-even in the absence of a
statute restricting disclosure-that a defendant alone may
make the determination as to the materiality of the
information.” Pennsylvania v. Ritchie, 480
U.S. 39, 59 (1987). Rather, “[i]n the typical case
where a defendant makes only a general request for
exculpatory material under [Brady], it is the
[government] that decides which information must be
disclosed. Unless defense counsel becomes aware that other
exculpatory evidence was withheld and brings it to the
court's attention, the prosecutor's decision on
disclosure is final.” Id.
well established that a defendant is not permitted to engage
in a “fishing expedition” for discovery. The
Tenth Circuit has upheld a District Court's decision to
deny a motion to compel where a defendant was “unable
to specify what the items he requests contain, ” or
when he was “unable to verify whether the requested
material even exists.” United States v.
Morris, 287 F.3d 985, 991 (10th Cir. 2002).
Additionally, “Courts have held that requests for an