Opinion
No. CR-S-03-542-JCM (PAL).
January 28, 2005
DANIEL G. BOGDEN, United States Attorney, ERIC JOHNSON, Chief, Organized Crime Strike Force, ANDREW DUNCAN, Assistant United States Attorney, Lloyd D. George United States Courthouse, Las Vegas, Nevada, Attorneys for Plaintiff United States of America.
Eric Johnson, Esq., Chief, Organized Crime Strike Force, Andrew Duncan, Esq., Office of the United States Attorney, Las Vegas, Nevada, Attorney for plaintiff.
Daniel J. Albregts, Esq., Las Vegas, Nevada, Attorney for defendant Charles Acosta.
Kim Kruglick, Esq., Mill Valley, California, Attorney for defendant Robert Anello.
Paul Burglin, Esq., Mill Valley, California, Attorney for defendant Robert Anello.
Mace J. Yampolsky, Esq., Las Vegas, Nevada, Attorney for defendant Robert Anello.
Randall J. Roske, Esq., Las Vegas, Nevada, Attorney for defendant Ron Arnone.
Michael Cristalli, Esq., Las Vegas, Nevada, Attorney for defendant Matthew Carlock.
Mitchell Posin, Esq., Las Vegas, Nevada, Attorney for defendant Jeffrey Carney.
James A. Bustamante, Esq., San Francisco, California, Attorney for defendant Matt Camach.
Ross C. Goodman, Esq., Las Vegas, Nevada, Attorney for defendant Rodney Cox.
Thomas C. Naylor, Esq., Henderson, Nevada, Attorney for defendant Steve Eades.
John L. Duffy, Esq., Las Vegas, Nevada, Attorney for defendant Montgomery Elliott.
Anthony Montisano, Esq., Las Vegas, Nevada, Attorney for defendant Maurice Eunice.
Michael Harkness, Esq., San Diego, California, Attorney for defendant Maurice Eunice.
T. Louis Palazzo, Esq., Las Vegas, Nevada, Attorney for defendant Raymond Foakes.
Michael Cardoza, Esq., Walnut Creek, California, Attorney for defendant Shawn Frazer.
Peter S. Christiansen, Esq., Las Vegas, Nevada, Attorney for defendant James Hannigan.
Douglas L. Rappaport, Esq., San Francisco, California, Attorney for defendant Wayne Hodges.
William B. Terry, Esq., Las Vegas, Nevada, Attorney for defendant Eiland Hogan.
Osvaldo E. Fumo, Esq., Las Vegas, Nevada, Attorney for defendant Michael Hurn.
Scott L Bindrup, Esq., Las Vegas, Nevada, Attorney for defendant Charlie Hyde.
Terrence M. Jackson, Esq., Las Vegas, Nevada, Attorney for defendant Patrick Kalabolas.
Karen A. Connolly, Esq., Las Vegas, Nevada, Attorney for defendant Edward Laigo.
Brian M. Fisher, Esq., Las Vegas, Nevada, Attorney for defendant Dale Leedom.
Harris B. Taback, Esq., San Francisco, California, Attorney for defendant Jesse Mahon.
John J. Momot, Esq., Las Vegas, Nevada, Attorney for defendant Michael Mills.
Fred H. Atcheson, Esq., Reno, Nevada, Attorney for defendant Jeff Morales.
Michael Pancer, Esq., San Diego, California, Attorney for defendant Steven Pearce.
Michael Kennedy, Esq, Las Vegas, Nevada, Attorney for defendant Sohn Regas.
David Z. Chesnoff, Esq., Las Vegas, Nevada, Attorney for defendant Calvin Schaefer.
Mario D. Valencia, Esq., Henderson, Nevada, Attorney for defendant Donald Smith.
Alan Caplan, Esq., San Francisco, California, Attorney for defendant Michael Smullen.
John N. McNicholas, Esq., Las Vegas, Nevada, Attorney for defendant William Spearman.
Robert G. Lucherini, Esq., Las Vegas, Nevada, Attorney for defendant David Steely.
Leo P. Flangas, Esq., Las Vegas, Nevada, Attorney for defendant George Walters.
Brian F. Russo, Esq., Scottsdale, Arizona, Attorney for defendant John Ward.
Charles E. Kelly, Esq., Las Vegas, Nevada, Attorney for defendant Brian Wendt.
Richard A. Wright, Esq., Karen C. Winckler, Esq., Las Vegas, Nevada, Attorney for defendant Brian Wolff.
Chad A. Bowers, Esq., Las Vegas, Nevada, Attorney for defendant Jeff Zarate.
Robert Murdock, Esq., Las Vegas, Nevada, Attorney for defendant Shawn Frazer.
Jai M. Gohel, Esq., San Francisco, California, Attorney for defendant Shawn Frazer.
Robert M. Draskovich, Esq., Las Vegas, Nevada, Attorney for defendant Justin Harrah.
Travis E. Shetler, Esq., Las Vegas, Nevada, Attorney for defendant Keith Hixon.
Anthony Sgro, Esq., Las Vegas, Nevada, Attorney for defendant Ricky Jenks.
Andrew Fritz, Esq., Las Vegas, Nevada, Attorney for defendant Daniel LaJoices.
INDICTMENT
VIOLATIONS: 18 U.S.C. § 1959 — Violence in Aid of Racketeering; § 924(c) — Use of Firearm in Commission of Felony; § 2 — Aiding and Abetting; and § 924 — Criminal Forfeiture
ORDER AFFIRMING MAGISTRATE ORDER (#561)
Before this court is the order of U.S. Magistrate Judge Leen (#561) requiring government prosecutors to timely disclose before trial all evidence or information known that tends to negate the guilt of the accused or mitigate the offenses charged. Judge Leen's order further directs the government to make these disclosures no later than sixty (60) days before trial. The Office of the United States Attorney filed objections (#590) to Section C and D of the order on September 19, 2004. Defendant Steven Pearce filed his reply (#608) on October 6, 2004. The parties' arguments concerning Judge Leen's order raise two important questions of law reviewed de novo by this court. See generally United States v. Cabaccang, 332 F.3d 622 (9th Cir. 2003). First, what is the scope of the government's duty to disclose exculpatory evidence before trial? Second, how are conflicts between the duty to disclose and the Jencks Act reconciled? Scope of Pre-Trial Duty to Disclose:
"The prosecution's affirmative duty to disclose evidence favorable to a defendant can trace its origins to early 20th-century strictures against misrepresentation and is of course most prominently associated with . . . Brady v. Maryland, 373 U.S. 83, 87 (1963)." Kyles v. Whitley, 514 U.S. 419, 432 (1995). In Brady, the Supreme Court held "suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or punishment." 373 U.S. at 87. "Favorable" evidence under Brady encompasses both exculpatory and impeachment evidence and evidence must be both favorable and material before disclosure is required. United States v. Bagley, 473 U.S. 667, 674 (1985).
All parties recognize material exculpatory evidence under Brady must be disclosed before trial, but the government urges Brady's materiality standard is the limit of the duty to disclose. This court cannot agree.
Brady and its progeny arise in a post-trial context. Specifically, these cases address after trial whether the failure to disclose favorable material evidence in violation of defendant's due process rights justifies a new trial. As United States v. Bagley, 473 U.S. 667 (1985), makes clear, only suppression of evidence that cumulatively rises to the level of "material" violates defendant's due process rights. Brady's concern whether a constitutional violation occurred after trial is a different question than whether Brady is the full extent of the prosecutor's duty to disclose pretrial. Brady's materiality standard for due process violations in a post-trial context should not be used to sanction any and all conduct that does not rise to a constitutional violation of defendant's due process rights because the United States Attorney is held to a higher standard.
The United States Attorney is "the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done." Berger v. United States, 295 U.S. 78, 88 (1935).
"This special status explains both the basis for the prosecution's broad duty of disclosure and our conclusion that not every violation of that duty necessarily establishes that the outcome was unjust. Thus, the term ` Brady violation' is sometimes used to refer to any breach of the broad obligation to disclose exculpatory evidence — that is, to any suppression of so-called ` Brady material' — although, strictly speaking, there is never a real `Brady violation' unless the non-disclosure was so serious that there is a reasonable probability that the suppressed evidence would have produced a different verdict." Strickler v. Greene, 527 U.S. 263, 281 (1999).
Though the Supreme Court in Strickler recognized the duty to disclose is broader than the narrower question whether failure to disclose violates the Constitution, the Strickler Court did not delineate the scope of that duty. Nevada, like many states, has adopted the ABA Standards for Criminal Justice to fill this void and Supreme Court Rule ("SCR") 179(4), derived from ABA Model Rule 3.8(d), defines the scope of the duty to disclose stating "the prosecutor in a criminal case shall [m]ake timely disclosure to the defense of all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigate the offense . . ." This court has adopted the ABA standard within SCR 179(4) for pretrial disclosure through Local Rule IA 10-7(a).
Government's objections
The government argues this guideline of professional conduct, adopted as a local rule, should not be elevated to a standard of pre-trail procedure. Government Opposition ("Opp'n") at 5. Yet this court's local rules, regardless of origin or form, regulate many aspects of pre-trial procedure and this court refuses to disregard them for that reason alone.
The government's opposition acknowledges federal prosecutors must follow the rules of professional conduct adopted by the district court, but contends these rules should not be construed "to supersede well-established Federal constitutional and statutory law, i.e, Brady v. Maryland, 373 U.S. 83 (1963), and its progeny, and the Jencks Act, 18 U.S.C. § 3500." Opp'n at 3. The government supports this contention by citing U.S. v. Coppa, 267 F.3d 132 (2nd Cir. 2001); State v. Walter, 2003 WL 352628 (Conn.Super.Ct. 2000); and In the Matter of Attorney C, 47 P.3d 1167, 1171 (Colo. 2002). These cases are not controlling authority for this court and this court is convinced the Ninth Circuit and Supreme Court consider the ABA standards as supplementing rather than superseding Brady, statutory law, and the Jencks Act.
As the Court in Kyles v. Whitley noted, ". . . the rule in Bagley (and, hence, in Brady) requires less of the prosecution than the ABA Standards for Criminal Justice, which call generally for prosecutorial disclosures of any evidence tending to exculpate or mitigate." Kyles, 514 U.S. at 437. This implies the ABA standards and Brady are not mutually exclusive. Rather, the ABA Standards offer a model for pretrial disclosures, a model adopted by Nevada and this court, while Brady and its progeny concern whether violation of the pretrial duty to disclose, defined in this court by SCR 179(4), rises to the level of a constitutional violation after trial has occurred.
One of the few courts within this circuit to consider the pretrial duty to disclose is United States v. Sudikoff, 36 F.Supp.2d 1196 (C.D.Cal. 1999). In Sudikoff, District Judge Pregerson reasoned Brady's standard of materiality "is only appropriate, and thus applicable, in the context of appellate review. Whether disclosure would have influenced the outcome of a trial can only be determined after the trial is completed and the total effect of all the inculpatory evidence can be weighed against the presumed effect of the undisclosed Brady material . . . This analysis obviously cannot be applied by a trial court facing a pretrial discovery request." Sudikoff, 36 F.Supp.2d. at 1198. As Sudikoff recognizes, under Bagley's cumulative "materiality" standard it becomes extremely difficult if not impossible to discern before trial what combination of evidence will be deemed "material" after trial under Brady.
For this reason, the Ninth Circuit noted in United States v. Van Brandy, 726 F.2d 548, 552 (9th Cir. 1983), that "where doubt exists as to the usefulness of evidence, [the government] should resolve such doubts in favor of full disclosure, but its failure to do so must raise a reasonable possibility that it materially affected the verdict before it becomes significant." Simply because "material" failures to disclose exculpatory evidence violate due process does not mean only "material" disclosures are required.
Whether evidence is "useful," "favorable," or "tends to negate the guilt or mitigate the offense" are semantic distinctions without difference in a pretrial context. SCR 179(4)'s standard does not exceed Brady as the prosecution argues, but instead asks the same initial question as Brady, i.e. whether the evidence is favorable.
Because SCR 179(4) does not supersede Brady's constitutional concerns, this court does not exceed its authority in adopting it under Local Rule IA 10-7(a). Opp'n at 14. Fed.R.Crim.P. 57(a) provides clear authority for district courts to make rules governing pretrial criminal procedure so long as the Local Rules do not conflict with federal law. As the Ninth Circuit noted in United States v. Richter, 488 F.2d 170, 173 (9th Cir. 1973), "[i]t is recognized that wide latitude is reposed in the district court to carry out successfully its mandate to effectuate, as far as possible, the speedy and orderly administration of justice."
The government next contends Magistrate Leen cannot possible expect it to now search ". . . for evidence that merely `tends' to negate or mitigate, without regard to any materiality." Opp'n at 6. Despite the government's consternation, this burden is already imposed by Brady. "The individual prosecutor has 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, 514 U.S. at 437. As noted, "favorable" evidence and the "negate or mitigate" standards are essentially identical. If anything, SCR 179(4) may be easier for prosecutors to satisfy because it removes the secondary analysis whether favorable evidence is cumulatively "material."
Finally, the government curiously asserts "there is no requirement that any form of Brady material, including affirmatively exculpatory information, be produced before trial unless pretrial disclosure is necessary to make effective use of the information" Opp'n at 10. This appears to disregard the Ninth Circuit's clear pronouncement that "[u]nder Brady, the government must disclose before trial `evidence [that is] material either to guilt or punishment which is favorable to the accused . . ." United States v. Nagra, 147 F.3d 875, 881 (9th Cir. 1998) (quoting United States v. Hanna, 55 F.3d 1456, 1459 (9th Cir. 1995)).
Conflict between Brady and Jencks Act
The strongest concern raised by the government regards the inevitable collision between the pretrial duty to disclosure and the Jencks Act. Opp'n at 9. As the government notes, the purpose of the Jencks Act is to "provide for the production of statements, reports, transcriptions or recordings, as described in the bill, after the government witness has testified against the defendant on direct examination in open court, and to prevent disclosure before such witness has testified." Opp'n at 11 (quoting S.Rep. No. 85-981, 85th Cong.1st Sess. (1957), at 3, 1957 WL 5113).
To prevent disclosure of witness statements before testifying, subsection (a) of the Jencks Act provides "[i]n any criminal prosecution . . . no statement or report in the possession of the United States which was made by a Government witness or prospective government witness (other than the defendant) shall be the subject of subpoena, discovery, or inspection until said witness has testified on direct examination in the trial of the case." 18 U.S.C. § 3500(a).
The obvious example of this conflict occurs when a government witness' statement includes favorable evidence for the defense. The government raises this inevitable conflict to argue the "negate or mitigate" standard should be stricken because it would render "invalid a key provision of the Jencks Act, which requires the production of a witness' statements following testimony by that witness." Opp'n at 9.
However, it is important to recognize this collision between Jencks and the pretrial duty to disclose occurs whether the standard is SCR179(4) or Brady's "materiality" standard. It is also important to recognize that though other circuits largely disagree, the Ninth Circuit has clearly held the Jencks Act controls over Brady. See United States v. Shifflett, 798 F.Supp. 354, 356 n. 5 (W.D. Vir. 1992) " Brady does not overcome the strictures of the Jencks Act. When the defense seeks evidence which qualifies as both Jencks Act and Brady material, the Jencks Act standards control." United States v. Jones, 612 F.2d 453, 455 (9th Cir. 1979).
Regardless of the wisdom behind suppressing the constitutional rights of defendants with a rule of evidence and procedure only, not "an interpretation of the Constitution," 2A Charles A. Wright Arthur R. Miller, Federal Practice and Procedure, Criminal 3d § 436 (3d ed. 2000), the Ninth Circuit holding of Jones must be followed. Because the "negate or mitigate" standard would no doubt be encapsulated within the holding of Jones, the government's fear of the pretrial duty rendering a large portion of the Jencks Act invalid is misguided.
Rather, what renders the Jencks Act inapplicable is Fed.R.Crim.P. 26.2. "In 1980 Criminal Rule 26.2 became effective. It places in the Criminal Rules the substance of what had been the Jencks Act, but it also provides for production of the statements of defense witnesses at trial in essentially the same manner as the statute had provided with respect to the statements of government witnesses. Thus, the Jencks Act itself is no longer applicable, and the principles contained in it are discussed in connection with Rule 26.2."2A Charles A. Wright Arthur R. Miller, Federal Practice and Procedure, Criminal 3d § 417 (3d ed. 2000); Fed.R.Crim.P. 26.2 advisory committee's note, 1979 addition.
Rule 26.2 does not include the strict language against pretrial discovery relied on by the government from subsection (a) of the Jencks Act. Rather, subdivision (g)(1) of Rule 26.2 recognizes witness statements may be disclosed before trial if required for preliminary hearings before a magistrate judge under Fed.R.Crim.P. 5.1.
This does not mean the important concerns subsection (a) of the Jencks Act intended to guard against should be disregarded, namely the risk of "adverse consequences to both witnesses and other investigations." Opp'n at 9. Yet neither should the important concerns behind the prosecution's pretrial duty to disclose, namely the defendant and society's interest in a fair trial, be cast aside. Choosing one interest over the other, as in Jones, unavoidably produces "some situations in which late disclosure would emasculate the effects of Brady or other situations in which premature disclosure would unnecessarily encourage those dangers that militate against excessive discovery in criminal cases, e.g. potential for manufacture of evidence or bribing of witnesses." Shifflet, 798 F.Supp. at 356.
Though this collision may be unavoidable in some cases, this court doubts the risk is so dire it necessitates scrapping the pretrial duty to disclose under SCR 179(4) solely to prevent potential conflicts that may be more imagined than real.
First, the Jencks Act and Fed.R.Crim.P. 26.2 primarily guard against disclosure of actual statements by witnesses. In most cases, the pretrial duty to disclose may be satisfied not through production of the actual statement but rather by production of some synopsis of the exculpatory or impeachment evidence contained within the statement without production of the actual statement.
Second, the prosecution calls witnesses to offer inculpatory evidence. If a witness' testimony includes exculpatory or impeachment evidence, then that witness' usefulness to the prosecution is limited. Subsection (a) was intended to protect against the danger of improper witness influence. This danger is substantially lessened when witness testimony includes exculpatory evidence or the witness is readily impeached.
The government admits the dangers subsection (a) protects against are often not present when it informs the court the usual practice is to produce exculpatory or impeachment evidence five days before trial. Instead, the government repeatedly raises not the dangers subsection (a) intends to avoid, but instead the burden upon the prosecution itself. This burden should not be the prosecution's justification for avoiding its duty under SCR 179(4), nor its constitutional obligations under Brady.
In those rare cases where SCR 179(4), Brady, and Rule 26.2/Jencks Act are implicated, the court maintains an ideal mechanism to resolve conflict in the expertise and discretion of its magistrate judges. Magistrates are intimately familiar with the demands and dangers of discovery and the different concerns embodied by SCR 179(4), Brady, Rule 26.2, and the Jencks Act.
Should the government realize a potential witness statement contains exculpatory or impeachment evidence, then the government may either voluntarily produce the evidence as it often does now, or the government may go before a magistrate judge to resolve the dilemma. The magistrate judge may then fashion a protective order to guard against whatever concerns the government raises under the Jencks Act/Rule 26.2. At the same time, the magistrate judge may provide the defense with a summary of the SCR 179(4)/ Brady evidence or some other solution to satisfy the underlying interest in disclosure. In Jones, the Ninth Circuit contemplates such in camera review as a sound approach to resolving both Brady and Jencks concerns. See Jones, 612 F.2d at 456.
This mechanism guards against the potential dangers, yet satisfies the important considerations under this court's pretrial duty to disclose. Such compromise also complies with the Jencks Act and Rule 26.2, yet avoids emasculating the important duty of pretrial disclosure. If the magistrate judge concludes no solution is possible, then the Jencks Act clearly controls and the witness statement cannot be produced until the witness testifies on direct examination.
Given Brady protects the constitutional rights of defendants whereas the Jencks Act is a rule of evidence and procedure, these potential conflicts should be minimized to provide the greatest protection for defendant's constitutional rights while still guarding against the dangers the Jencks Act was originally concerned with.
Timing
The final procedural concern the government raises is the 60-day timeline set by Magistrate Leen. Neither Brady and its progeny nor SCR 179(4) establish a specific schedule for disclosure. Here, Magistrate Judge Leen considered the substantial amount of evidence within the case and that the prosecution was unwilling to sever defendants to facilitate trial. Since this determination, the government has submitted to the court its proposed plan severing defendants into smaller groups of seven for trial. (#618) Accordingly, the 60-day order for pre-trial disclosure is moot and should be reset in the discretion of Magistrate Judge Leen taking account of the important considerations her order lays out.
Therefore, upon review of the magistrate's order and the parties' submissions, IT IS HEREBY ORDERED, ADJUDGED AND DECREED that the order (#561) of United States Magistrate Judge Leen, be, and the same hereby is, AFFIRMED in its entirety subject to the above modifications.