Transcript Document

OVERCOMING OBSTACLES TO
DISCOVERY AND INVESTIGATION
IN FEDERAL COURT
Peter Offenbecher
TRUTH
JUSTICE
THE AMERICAN WAY
WHO WE THINK WE ARE
WHAT WE ALWAYS DO
WHO WE REALLY ARE
THE DECK IS STACKED AGAINST US
SHARING STUFF
SHARING STUFF
FPD BRIEFBANK
CALL ME
DISCOVERY AND INVESTIGATION:
OVERVIEW
RULE 16(a)(1)(E)(i)
BRADY AND GIGLIO TIPS
JENCKS DELAY
NEEDLE IN A HAYSTACK PLOY
USING RPCS
USING DOJ RULES
RULE 17(c) SUBPOENA
WHAT IS OUR ULTIMATE GOAL?
WIN THE TRIAL!
ACQUITTAL!
LESSER INCLUDED
HUNG JURY
DISMISSAL / SMOKING DEAL
Evidence to persuade the government to dismiss the case or offer
a smoking deal that works for the client because:

The merits of your defense

The government is afraid of getting caught in some form of misconduct either:

on their part or
 the part of the law enforcement agency

They don’t want to work as hard as you are going to make them work
DISCOVERY AND INVESTIGATION:
MAKING A RECORD FOR
APPEAL OR HABEAS
 Make the government
commit a serious error
 Make the court commit a
serious error
DISCOVERY AND INVESTIGATION:
What are we trying to accomplish?
Finding admissible evidence to
present at trial:
To support client’s defense:
That can be used to attack the
credibility of the government’s case
BIGGEST PROBLEM
FINDING EVIDENCE IN
FEDERAL COURT?
THE RULES
ARE NOT FAIR
NO OPEN FILE DISCOVERY
NO WITNESS INTERVIEWS
NO RECORDING OF WITNESS INTERVIEWS
Federal Rule of Criminal Procedure 16
 Specific items
 Items material to
preparing the defense
RULE 16: SPECIFIC ITEMS
 Defendant’s criminal history  Reports of examinations and
tests
 Defendant’s statements
 Expert witnesses
 Documents and objects:
 Government intends to use
in case in chief
 Items obtained from/or
belong to defendant
FAVORITE WEAPON IN RULE 16
MATERIAL TO PREPARING THE DEFENSE
RULE 16 (a)(1)(E)(i)
The government must permit defendant to inspect and copy if
within government’s possession, custody or control
ANY ITEM THAT IS MATERIAL
TO PREPARING THE
DEFENSE
MATERIAL TO PREPARING THE DEFENSE
RULE 16 (a)(1)(E)(i)
“Rule 16 is intended to provide a
criminal defendant ‘the widest
possible opportunity to inspect and
receive such materials in the
possession of the Government as may
aid him in presenting his side of the
case.’”
United States v. Safavian, 233 F.R.D. 12, 15 (D.D.C. 2005)
D.C. District Judge Paul Friedman
“There is no requirement in Rule
16(a)(1)(E)(i) that the material be
exculpatory.”
United States v. Safavian, 233 F.R.D. 12, 15 (D.D.C. 2005)
“It is not limited to evidence that is favorable
or helpful to the defense and does not
immunize inculpatory evidence from
disclosure.”
United States v. Safavian, 233 F.R.D. 12, 15 (D.D.C. 2005)
“Inculpatory evidence, after all, is just as likely to
assist in ‘the preparation of the defendant’s defense’
as exculpatory evidence....”
“[I]t is just as important to the preparation of a
defense to know its potential pitfalls as to know its
strengths.”
United States v. Safavian, 233 F.R.D. 12, 15 (D.D.C. 2005)
Rule 16(a)(1)(E)(i) permits
discovery of information
“relevant to the development of
a possible defense.”
United States v. Muniz-Jaquez, 718 F.3d 1180, 1183-84 (9th Cir. 2013)
Judge Alfred Goodwin
“Materiality” under Rule 16(a)(1)(E)(i)
is “broader than Brady…because
[i]nformation that is not exculpatory
or impeaching may still be relevant
to developing a possible defense.”
United States v. Muniz-Jaquez, 718 F.3d 1180, 1183-84 (9th Cir. 2013)
CHIEF JUDGE ALEX KOZINSKI
Rule 16(a)(1)(E)(i)
“[m]ateriality is a low
threshold” and is satisfied so
long as the information
sought could help the
defendant prepare a
defense.
United States v. Hernandez-Meza, 720 F.3d 760, 768 (9th Cir. 2013)
“It…behooves the government to
interpret the disclosure requirement
[of Rule 16(a)(1)(E)(i)] broadly and
turn over whatever evidence it has
pertaining to the case.”
United States v. Hernandez-Meza, 720 F.3d 760, 768 (9th Cir. 2013)
A defendant needn’t spell out his theory of
the case in order to obtain discovery.
Nor is the government entitled to know in
advance specifically what the defense is
going to be.
United States v. Hernandez-Meza, 720 F.3d 760, 768 (9th Cir. 2013)
LACK OF KNOWLEDGE OR
DUE DILIGENCE
IS NO EXCUSE FOR
GOVERNMENT’S
FAILURE TO COMPLY
United States v. Hernandez-Meza, 720 F.3d 760, 768 (9th Cir. 2013)
CHIEF JUDGE KOZINSKI
WHY RULE 16(a)(1)(E)(i)
IS SO GOOD
Defense counsel constitutionally
ineffective for failing to conduct an
investigation which would have revealed a
meritorious Fourth Amendment motion
to suppress physical evidence and failing
to pursue the motion to suppress.
Kimmelman v. Morrison, 477 U.S. 365, 385-86 (1986)
INFORMATION REGARDING MOTIONS TO
SUPPRESS EVIDENCE IS
“MATERIAL TO PREPARATION OF THE DEFENSE”
Because defense counsel have a constitutional
obligation to investigate and file these motions to
suppress, the information and evidence
requested regarding the motion is “material to
preparation of the defense.”
Fed. R. Crim. P. 16(a)(1)(E)(i).
OTHER WEAPONS IN THE ARSENAL
Brady v. Maryland
Giglio v. United States
DISAVOW THE STANDARD OF MATERIALITY
UNDER BRADY/BAGLEY
The evidence 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.
A ‘reasonable probability’ is a probability sufficient to
undermine confidence in the outcome.
TRIAL COURT
STANDARD OF REVIEW
The standard of whether
evidence would have changed
the outcome “is only
appropriate, and thus
applicable, in the context of
appellate review . . . [I]t
obviously cannot be applied by
a trial court facing a pretrial
discovery request.”
United States v. Sudikoff, 36 F. Supp. 2d 1196 (C.D. Cal. 1999)
Judge Harry Pregerson
The government must always produce any
potentially exculpatory or otherwise
favorable evidence without regard to how
the withholding of such evidence might be
viewed – with the benefit of hindsight – as
affecting the outcome of the trial.
United States v. Safavian, 233 F.R.D. 12, 16 (D.D.C. 2005)
A trial prosecutor’s speculative prediction about the likely
materiality of favorable evidence, however, should not
limit the disclosure of such evidence, because it is just too
difficult to analyze before trial whether particular evidence
ultimately will prove to be “material” after trial.
Thus, “there is a significant practical difference between
the pretrial decision of the prosecutor and the post-trial
decision of the judge.”
United States v. Olsen, 704 F.3d 1172, 1183 n.3 (9th Cir. 2013)
The ‘materiality’ standard usually
associated with Brady . . . should not
be applied to pretrial discovery of
exculpatory materials.
The absence of prejudice to the
defendant does not condone the
prosecutor’s suppression of
exculpatory evidence.
United States v. Price, 566 F. 3d 900, 911 n.12 (9th Cir. 2009)
Judge Stephen Reinhardt
Rather, the proper test for pretrial disclosure of
exculpatory evidence should be an evaluation of
whether the evidence is favorable to the defense,
i.e., whether it is evidence that helps bolster the
defense case or impeach the prosecutor’s witnesses.
...
If doubt exists, it should be resolved in favor of the
defendant and full disclosure made. o pretrial
discovery of exculpatory materials. . .
United States v. Price, 566 F. 3d 900, 911 n.12 (9th Cir. 2009)
UNITED STATES ATTORNEYS MANUAL
ADOPTED BY THE DOJ
The USAM requires prosecutors to disclose information
beyond that which is “material” to guilt as articulated by
the U.S. Supreme Court, and prosecutors must disclose
exculpatory or impeachment information
. . . . regardless of whether the prosecutor believes such
information will make the difference between conviction
and acquittal of the defendant for a charged crime.
U. S. Attorneys Manual § 9-5.001.
FIRST ASK NICELY WHAT YOU WANT
MAKE THE PROSECUTOR ADOPT
THE TRIAL COURT STANDARD OF REVIEW
Send them a letter asking them to agree
that this is the standard.
Then file a motion asking the judge to set
that standard for the prosecutor.
Practical Order of Events
1. Letter – specific and general
2. Meeting – Local Rule 16 requires a meet and confer
3. Follow-up letter
4. Motion for order compelling discovery
5. Request a hearing on the motion
6. Oral argument – present evidence – call witnesses
United States v. Phair and Louie
No. CR 12-16 RAJ
Judge Richard A. Jones
INFORMATION, NOT JUST STUFF
United States v. Kohring, 637 F.3d 895, 900 (9th Cir. 2011)
JENCKS DELAYS
The prosecutor promised to provide Jencks Act
statements “at a reasonable time before trial.” The
Court concluded that “this statement is, in essence a
waiver by the government of its right to withhold
any statements covered by the Jencks Act until after
the relevant witness testifies on direct examination.”
United States v. Hikiau, Inc., 2:07-CR-00792-DAKPMW, 2008 WL 803053 (D. Utah Mar. 21, 2008)
THE COURT’S INHERENT
POWER TO CONTROL ITS CALENDAR
United States v. W.R. Grace, 526 F.3d 499, 508-12 (9th Cir. 2008)(en banc)
Affirming trial court order
directing the disclosure of the
government’s final witness list
one year prior to trial
GET AN EVIDENTIARY HEARING ON ANYTHING
WHERE YOU CAN CALL THE AGENTS TO TESTIFY
Get the Jencks (Rule 26.2 (g)) [preliminary
hearing, sentencing hearing, revocation hearing,
detention hearing, suppression hearing]
GET THE AGENTS TESTIFYING UNDER OATH
Because you know what’s going to happen
Get the agents and
witnesses talking to
the AUSAs, so that
NEW BRADY AND
RULE 16 MATERIAL
will be generated
USE THE
RULES OF
PROFESSONAL
CONDUCT
28 U.S.C. Section 530B(a) (also known as the “Citizen’s Protection
Act of 1998”) (“An attorney for the Government shall be subject to
State laws and rules, and local Federal court rules, governing
attorneys in each State where such attorney engages in that
attorney's duties, to the same extent and in the same manner as
other attorneys in that State.”);
28 C.F.R. § 77.3 (“In all criminal investigations and prosecutions . . .
attorneys for the government shall conform their conduct and
activities to the state rules and laws, and federal local court
rules.”)
RPC 3.8(d)
The prosecutor in a criminal case shall . . .
(d) make timely disclosure to the defense of
all evidence or information known to the
prosecutor that tends to negate the guilt of
the accused or mitigates the offense.
See ABA Formal Op. 09-454, at (July 8, 2009))
NEEDLE IN A HAYSTACK DISCOVERY PLOY
United States v. Silva
No. CR12-047 MJP
Judge Marsha J. Pechman
CRIMINAL RULE 17(c) AND CIVIL RULE 45
Practice pointers
• Affirmative duty to search possible sources of
exculpatory information
• Government’s witness preparation material
• Within its possession custody or control
• Jencks request after the direct examination of witness
• Request for preservation of notes
HENTHORN
Review of the personnel files of any
government witness to determine
whether such files contain any
information tending to cast doubt on
that witness’s credibility.
United States v. Henthorn, 931 F.2d 29, 30-31 (9th Cir. 1991).
United States v. Jennings, 960 F.2d 1488, 1491-92 (9th Cir. 1992).