DISCOVERY AND SUBPOENAS TO BUILD YOUR DEFENSE

Michael Filipovic, Emily Gause, and Mohammad Hamoudi

See Appendix A (Comprehensive Outline by Carol Brook)

Rule 16 Procedures

• Rule only applies if a request for discovery is made.

• Local Rule CrR 16(a) requires an oral request for discovery at arraignment, and if not made orally it can thereafter be made in writing.

• Local Rule mandates a discovery conference within 14 days and requires such a conference and an identified discovery dispute as a prerequisite to filing a discovery motion. CrR 16(a) and (i).

Rule 16 Tactical Considerations

• Should you request discovery under Rule 16? If you make requests for certain discovery, the defense is obligated to make reciprocal discovery. See Fed. R. Crim. P. 16(b)(1)(A) (documents and objects), (B) (reports of examinations and tests), and (C) (written summary of expert testimony).

• Do boilerplate discovery letters and motions serve any purpose under our local rules?

Form Discovery Letters vs. Specific Requests

• What is your goal?

• Do recitations to Rule 16 sub-sections, or citations to Brady andGiglio, untethered to a specific request, accomplish anything?

• Examples and discussion.Compare letters in Appendix B.

“Documents and Objects” Rule 16(a)(1)(E)

• Applies to books, papers, documents, data, photographs, tangible objects, buildings or places, or copies or portions of these items if in the government’s possession, custody, or control, as long as: (a) the item is material to preparing the defense; or (b) the government intends to use it at trial in its case-in-chief; or (c) the item was obtained from or belongs to the defendant.

• Very broad rule – Includes “discovery to determine whether evidence … was obtained in violation of the Constitution and is thus inadmissible.” United States v. Soto-Zuniga, 837 F.3d 992, 1001 (9th Cir. 2016).

Materiality to the Defense Is a Low Standard

• Need not be admissible at trial.• If the discovery assists in formulating a defense, i.e., leading to admissible

evidence, or is something that would cause a defendant to abandon a defense, it is material. Soto-Zuniga, 837 F.3d at 1003, and United States v. Hernandez-Meza, 720 F.3d 760, 768 (9th Cir. 2013).

• It is material “as long as there is a strong indication that it will play an important role in uncovering admissible evidence, aiding witness preparation, corroborating testimony, or assisting impeachment or rebuttal.” Soto-Zuniga, 837 F.3d at 1003, and United States v. Lloyd, 992 F.2d 348 (D.C. Cir. 1993); but see United States v. Murillo, 2016 WL 5792692 (W.D. Wash. 2016) (denying discovery of prior case investigations for detective testifying as an expert on drugs and guns).

Application to Motion to Dismiss for Lost or Destroyed Evidence

United States v. Jesus SanchezMo Hamoudi• Felon in possession prosecution.• Defense of actual innocence asserted by client at time of arrest.• Defense counsel made an early specific request for access to firearm

for analysis.• AUSA failed to exercise due diligence in response to the request.• Agents let firearm be released for destruction/forfeiture.• Firearm was retrieved but only after it was handled by numerous law

enforcement agents.

Chronology of Events and Lessons Learned

• Review facts immediately with client -- listen, listen, listen.• Assess hiding defenses vs. revealing defenses.• Gov’t opening offer 96 months; no promises with respect to State.• Decided to reveal defenses and document everything.• “Shoot for the moon. Even if you miss you will land among the stars.”• Settled with a plea to conspiracy, 48 month gov’t rec, and concessions

on State side. Court ultimately imposed 38 months.

Quotes from Forced Disclosures

• FBI Agent: “Something went wrong.” “ I am very sorry for this setback, I should have been more diligent.”

• USMS Evidence Unit: “No gloves were worn and it was likely that latent prints and DNA from more than one USMS employee would be on the evidence.”

• AUSA: “I’m worried that the box will turn out to have been opened.” “The defense may likely move for a dismissal of the case.” “Ugh, I am really mad.”

• FBI Evidence Unit: Changed their policies and will not release weapons for forfeiture absent direction from AUSA to do so.

“Reports of Examinations and Tests” Rule 16(a)(1)(F)• Not limited to what government intends to present at trial. • Must be disclosed if government intends to produce at trial or if it is

just “material to preparing the defense.”• Must be disclosed if within the government’s possession, custody, or

control.• Underlying data is discoverable under Rule 16(a)(1)(E) if a proper

request is made. United States v. Liquid Sugars, 158 F.R.D. 466, 470 (E.D. Cal. 1994), and United States v. Grace, 233 F.R.D. 586, 589 (D. Montana 2005).

Expert Witnesses and Written Summary Rule 16(a)(1)(G)• This is a two-way street. If you requested discovery at arraignment

under Local Rule 16, you too are now obligated to provide both notice of experts and a written summary of their testimony.

• How detailed does the summary of expert testimony need to be? Compare United States v. Finley, 301 F.3d 1000, 1017 (9th Cir. 2002)(finding disclosure met minimum requirements of Rule 16 where notice provided government with information regarding general nature of doctor's testimony), with United States v. Murillo, 2016 WL 5792692 (W.D. Wash.) (disclosure of detective’s CV, transcripts of three other cases in which testified, and a list of “general topic” areas insufficient, must include the “actual opinions.”)

Highlights from W.D. Wash. Local Rule 16

• A defense oral request for discovery at arraignment is sufficient to invoke Rule 16 (but be aware of reciprocal duties you create for defense).

• Good language re: intent to promote open discovery.• Cannot file a motion for discovery without conducting the meet and confer,

filing a certificate of compliance, and narrowing the dispute.• Sets the discovery conference date as the due date for providing discovery.• Lists specific areas of discovery, and references Brady.• Requires the government to inform the defense if it will provide a list of

names and addresses for government witnesses.

More Highlights from Local Rule 16

• Requires counsel to discuss at the discovery conference whether discovery will entail substantial expense, and if so whether a discovery coordinator should be employed; and if either party believes the case might involve substantial expense or the need for a coordinator, a join status report must be filed within 7 days.

• If either party declines to make a disclosure covered by the rule, it must be in writing and filed with the court. Important.

• Exhibit lists must be exchanged 14 days before trial.• The parties can agree to exchange early Jencks (statements of

witnesses). To protect yourself this should be in writing.

BRADY – RECENT SUCCESS Emily Gause and Lee Covell• United States v. Frazier, No. CR16-33RAJ (Order Granting Relief) (copy

of order at Appendix C)

• Laying the Foundation for Success – Brady Letter (Appendix D)

Brady/Giglio/Kyles

• Alaska AUSAs, DOJ Public Integrity Attorneys, and FBI hide Brady/Giglio information in trial of Senator Ted Stevens in 2008.

• Wrongfully convicted on eve re-election bid, by less than 4,000 votes.

• Obamacare passes by one vote.• If this can happen to a sitting US

Senator from the same party as the President, it can happen to anyone.

BRADY STRATEGY

• Should you make your requests as specific as possible and tied to your defense theory?

• Are you using their language?• Should you tell the government what you have learned and where

you think the exculpatory evidence may be found?• Make sure your requests refer to “information,” not just documents

and reports.• Making the government attorney nervous about his or her agents.• How to deal with the lazy or inexperienced AUSA.

Preemptive Brady Motions

• The Government’s Brady dodge: Materiality, timing, and no documentation.

• “We only need to give it to you if we conclude it’s material, i.e., it would make a difference looking backwards at the appellate stage.” “We do not need to give it to you if client pleads guilty.” “Jencks can trump Brady. And “Judge: we have no reports or documents.”

• Each of these dodges can be met by an aggressive motions practice.

Materiality at District Court Level Is a Lower Standard• United States v. Phair, and Louie, Order attached at Appendix E, quoting

from dicta from United States v. Price, 566 F.3d 900, 911 n.12 (9th Cir. 2009):

• “[T]he 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. . . . [T]he government [should therefore] disclose all evidence relating to guilt or punishment which might reasonably be considered favorable to the defendant’s case, even if the evidence is not admissible so long as it is reasonably likely to lead to admissible evidence.” Also See, Order at Appendix G (US v. Cox).

Brady at Sentencing

• Brady v. Maryland, 373 U.S. 83, 87 (1963), requires that the government provide exculpatory or mitigating information which is “material either to guilt or to punishment” (emphasis added).

• Cone v. Bell, 556 U.S. 449, 473 (2009): “Evidence that is material to guilt will often be material for sentencing purposes as well; the converse is not always true.”

• Evidence concerning Cone’s excessive drug use and its effect on his mental health issues was not sufficiently material to an insanity defense at trial, but it was determined to be material for sentencing.

Does a Guilty Plea Waive All Brady Claims

• United States v. Ruiz, 536 U.S. 622 (2002). Government not required to turn over Giglio impeachment before guilty plea, and forcing defendant to waive Brady in plea agreement as to affirmative defenses does not violate constitution.

• United States v. Nelson, 979 F.Supp.2d 123 (2013), limits Ruiz to Brady impeachment (Giglio) and observes: “the majority of circuits to have considered the issue have held that a Brady violation can justify allowing a defendant to withdraw a guilty plea.”

It’s Exculpatory Information, Not Documents.

• United States v. Rodriquez, 496 F.3d 221, 224-25 (2nd Cir. 2007) (Government not required to take notes, but that does not absolve the government of its duty to provide Brady/Giglio information).

• In Ted Stevens case, a major part of the Brady violation was information provided by a witness during trial preparation that was not written down by the agent or reduced to a 302.

• Make clear Brady/Giglio request for any inconsistent statements made during witness preparation even if the AUSA or agent did not take notes. We have all seen how the government will take its witnesses “to the wood shed” for not giving the answers that fit their theory. This is not a Jencks request, it is Giglio.

OTHER DISCOVERY RULES AND DEVICES

• Rules 12.1, 12.2, and 12.3 (requirement of notice of defenses).• Witness Statements – Jencks Act (18 U.S.C. § 3500) and Fed. R. Crim.

P. 26.2.• Fed. R. Evid. 404(b) (prior bad acts).• Fed. R. Evid. 801(d)(2)(E) (co-conspirator statements).• Motion to Produce Informer (Roviaro).• Subpoena to Permit Inspection of Premises, Fed. R. Civ. P. 45

(Appendix F).• Additional examples in attached training materials.

Use vs. Misuse of Subpoenas

• Defense counsel sanctioned by district court for issuing a Rule 17(c)(1) for records not turned over in discovery without first getting permission from the district court and for making the subpoena returnable to a fictitious court date. United States v. Llanez-Garcia, 785 F.3d 483 (6th Cir. 2013).

• Defense counsel argued that Rule 17(c) for an early-return document subpoena does not clearly require prior court approval; the early return date was to stay within the court’s scheduling requirements; and subpoenaing certain items was not improper because those items were not within the government’s direct possession or control.

Issues Presented

• Does Criminal Rule 17(c)(1) permit a document subpoena to an attorney’s office or non-existent court date?

• Can you use Rule 17(c)(1) in lieu of a motion to compel under the criminal discovery rules?

• Must you first get affirmative court authorization before serving a Rule 17(c)(1) subpoena for records?

Answers Are Not Clear

• Court found that the attorney did not act in bad faith.• Rule 17 is broader than Rule 16. It allows the defense to request

documents from the government or third parties, but it is not meant as an alternative means to obtain discovery.

• Rule 17 does not contain a requirement that you exhaust your Rule 16 discovery rights before issuing a subpoena for documents.

• United States v. Nixon, 418 U.S. 683 (1974): (1) items must be evidentiary and relevant; (2) items not for trial without pretrial production of documents, otherwise procurable pretrial by due diligence; (3) cannot properly prepare; and (4) good faith.

Llanez-Garcia Dodged the Questions

• Did not resolve the attorney’s interpretation of Rule 17, but framed it as “whether the record indicates bad-faith conduct to support the sanctions.”

• Courts and secondary sources offer only limited guidance.• Compare United States v. Farmer, 2015 WL 1471965 (N.D. Ohio)

(denying subpoena for records to attorney’s office for a date not associated with a court hearing and denying substance of subpoena request by stringently applying Nixon factors) with analysis and cases collected in 2 Fed. Prac. & Proc. Crim. Sec. 275 Production of Documentary Evidence and Objects (4th ed.).

Broader Interpretations of Rule 17(c)

• Some district courts apply Nixon factors less strictly for subpoenas to third parties. United States v. Nosal, 291 F.R.D. 403 (N.D. Cal. 2013) (“applying a more relaxed standard to third party subpoenas will address the disparity between criminal and civil case in access to discovery”); United States v. Nachamie, 91 F. Supp. 2d 552, 562-63 (S.D.N.Y. 2000) (may be inappropriate in the context of a motion to quash third-party subpoena to require a strong showing of evidence as relevant, admissible, and specific and noting the imbalance of power where the government has access to grand jury subpoenas).

• May seek early production of documents by ex parte motion for subpoena.