Opinion
Case No. 03-40142-JAR.
September 13, 2005
MEMORANDUM ORDER DENYING MOTION TO REQUIRE DISCLOSURE OF GIGLIO MATERIALS
This matter comes before the Court on defendant Douglas T. Lake's Motion to Require Disclosure of Giglio Materials. (Doc. 508). The government filed a response to the motion, claiming that it is an improper litigation tactic and that counsel for defendant Lake, Edward Little, should be sanctioned for intentionally engaging in a pattern of such tactics. The Court has considered defendant's motion and the government's response and is prepared to rule. For the reasons stated below, defendant Lake's motion is denied and the government's request for sanctions is taken under advisement.
Background
This motion is the third attempt by one or both defendants to extract material they claim is discoverable under Giglio v. United States with regard to the first witness for the government, James Zakoura. On June 30, 2005, government counsel informed the Court and defendants during a lunch-time trial recess that it had recently discovered 261 pages of Jencks Act and Giglio material related to Zakoura, which the government had failed to earlier disclose. This material included less than 30 pages comprising Zakoura's handwritten notes and Zakoura's notations on documents. The balance of the 261 pages were documents that were within the materials already discovered by the defendants in accordance with this Court's prior discovery and scheduling orders. Defendants subsequently filed two motions related to the government's admitted discovery violation: a Joint Motion to Compel Production of Giglio Materials (Doc. 482) and a Motion for Evidentiary Hearing (Doc. 481). In addition, defendants served a subpoena upon James Zakoura seeking "all handwritten notes, documents, memos, emails, correspondence, writings and/or other material communicated between yourself and/or your firm and any government agents. . . ." The government responded by filing a Motion to Quash Subpoena Issued by Defense to Mr. James Zakoura (Doc. 483).
405 U.S. 150 (1972).
The Court held a hearing outside the presence of the jury on July 6, 2005 concerning the motions referenced above. The Court then noted that the government's discovery violation was serious, because the material, which was primarily Giglio material, demonstrated that Zakoura was involved in the investigation of this case and even provided coaching to the government. The Court noted, however, that defendants had been provided with a five-day recess to review the material and prepare for recross-examination. To cure any prejudice caused by the government's untimely disclosure, the Court ruled that defendants could examine Zakoura, who was still on the stand, concerning any newly discovered documents. The Court denied defendants' oral motion to strike Zakoura's testimony and took under advisement the issue of the government's bad faith, ruling that an evidentiary hearing was unnecessary at that time.
The Court similarly orally denied defendants' Motion to Compel Giglio Materials. From its review of the material disclosed by the government, the Court concluded that the government's most recent disclosure indicated that it had actually over-disclosed material. Much of the material provided to defendants was neither Jencks Act nor even Giglio material, but rather documents that had already been disclosed to defendants, or irrelevant, or undiscoverable. Finally, the Court orally granted the government's Motion to Quash the Subpoena served on Zakoura. The Court noted that the government indicated that it had disclosed all Brady, Jencks Act, and Giglio material to defendants. Noting that the subpoena sought material well beyond the scope of discoverable material, the Court likened the subpoena to a "fishing expedition." Accordingly, the Court granted the motion to quash.
Brady v. Maryland, 373 U.S. 83 (1963).
Defendants subsequently renewed their request for an evidentiary hearing, arguing that a hearing was necessary to develop the level of culpability to be assigned to the government for its violation of established disclosure requirements. After considering the relevant factors, the Court concluded that the government should not be sanctioned for the discovery violation. (Doc. 496.) Notably, the Court found that there was no evidence of bad faith on the part of the government, that the government had actually over disclosed material to defendants, and that the continuance and subsequent cross examination by defense counsel of Zakoura cured any potential prejudice to the defendants.
The defendants also moved to strike Zakoura's testimony, which was denied. (Doc. 504.)
Discussion
Defendant Lake now asserts that "new information" leads him to believe that Richard Hathaway, counsel for the government, continues to withhold discoverable materials under Giglio concerning communications between himself and Zakoura. Specifically, defendant Lake discovered that Hathaway previously worked for Farmland Industries, Inc. ("Farmland") and that Zakoura represented Farmland in some capacity in the past.To establish a Giglio violation, defendant must show, "`(1) that the prosecution suppressed the evidence, (2) that the evidence was favorable to the accused, and (3) that the evidence was material.'" Defendant Lake advances no argument that (a) the men were affiliated with Farmland during the same period of time, or (b) they had any relationship at all prior to the Westar investigation. Even if defendant Lake was able to assert such facts, no nexus is shown between Hathaway's former employment by Farmland and the existence and suppression of Giglio materials. Defendant Lake asks the Court to assume that the thread of connection it presents between Hathaway and Zakoura with the same company more than twenty years ago must have produced some impeachable material relevant to Zakoura's testimony that was suppressed. The Court declines to make such an untenable assumption.
United States v. Gonzalez-Montoya 161 F.3d 643, 649 (10th Cir. 1998) (quoting Smith v. Sec'y of N.M. Dep't of Corr., 50 F.3d 801, 827 (10th Cir. 1995)), cert. denied, 526 U.S. 1033 (1999).
The Court sees no reason not to accept Hathaway's statement in his response memorandum that he "is unaware of what, if any legal representation, was provided by Mr. Zakoura to Farmland because government counsel was not involved in any such legal matter and did not participate with Mr. Zakoura in any such representation." Nor is the Court compelled to disregard Hathaway's statement at the July 6 hearing that he had disclosed all discoverable material under the Jencks Act, Brady, and Giglio. Defendant's "new information" simply does not suffice to meet the burden of proof required to prove that a Giglio violation occurred; therefore, the Court denies defendant's motion. The Court will take under advisement the motion for sanctions against counsel; the Court has under advisement other oral or written motions for sanctions raised during the trial.
IT IS THEREFORE ORDERED BY THE COURT that defendant Lake's Motion to Require Disclosure of Giglio Materials (Doc. 508) is DENIED.
IT IS SO ORDERED.