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United States v. Perrault

United States District Court, D. New Mexico

March 12, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
ARTHUR PERRAULT Defendant.

          MEMORANDUM OPINION AND ORDER

          MARTHA VÁZQUEZ UNITED STATES DISTRICT JUDGE.

         THIS 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 DENIED.

         BACKGROUND

         On 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.

         Mr. 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.

         On 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.

         In its 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.

         DISCUSSION

         I. Legal Standard

         a. Brady Standard

         In 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).

         Similarly, “[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.

         It is 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 ...


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