Opinion
CRIMINAL 18-cr-429-WJM
11-17-2021
UNITED STATES OF AMERICA, Plaintiff, v. 1. MYKHAEL KUCIAPINSKI, Defendant.
ORDER GRANTING IN PART, DENYING IN PART, AND TAKING UNDER ADVISEMENT IN PART DEFENDANT MYKHAEL KUCIAPINSKI'S MOTION FOR DISCOVERY, TO PRESERVE EVIDENCE, AND FOR LEAVE TO FILE FURTHER MOTIONS
WILLIAM J. MARTINEZ, UNITED STATES DISTRICT JUDGE
Defendant Mykhael Kuciapinski (“M. Kuciapinski”) has been charged in a Superseding Indictment with conspiring to commit an offense against the United States by disclosing and obtaining source selection information prior to the award of a contract and defrauding the United States with respect to the contract, six counts of unlawfully obtaining procurement information, one count of making a false statement, sixteen counts of wire fraud, and one count of committing a major fraud against the United States. (ECF No. 204.)
On December 14, 2020, M. Kuciapinski filed a Motion for Discovery, to Preserve Evidence, and for Leave to File Further Motions (“Motion”), requesting specific discovery under Brady v. Maryland, 373 U.S. 83 (1963), Giglio v. United States, 405 U.S. 150 (1972), and Federal Rule of Criminal Procedure 16. (ECF No. 412.) The Government filed its response on January 11, 2021 (ECF No. 420), and M. Kuciapinski filed her reply on January 22, 2021 (ECF No. 424).
For the following reasons, the Motion is granted in part, denied in part, and taken under advisement in part.
I. LEGAL FRAMEWORK
A. Brady v. Maryland
“The Constitution, as interpreted in Brady, does not require the prosecution to divulge every possible shred of evidence that could conceivably benefit the defendant.” Smith v. Sec'y of N.M. Dep't of Corr., 50 F.3d 801, 823 (10th Cir. 1995). Brady requires disclosure only of evidence that is both favorable to the accused, and “material either to guilt or to punishment.” Brady, 373 U.S. at 87. “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.” United States v. Bagley, 473 U.S. 667, 682 (1985); see also United States v. Allen, 603 F.3d 1202, 1215 (10th Cir. 2010). A “reasonable probability, ” in turn, is a “probability sufficient to undermine confidence in the outcome.” Bagley, 473 U.S. at 682 (internal quotation marks omitted).
The Tenth Circuit also has stated that evidence is material if it “might meaningfully alter a defendant's choices before and during trial . . . [including] whether the defendant should testify.” Case v. Hatch, 731 F.3d 1015 (10th Cir. 2013) (quoting United States v. Burke, 571 F.3d 1048, 1054 (10th Cir. 2009) (alterations in original; internal quotation marks omitted)). The Tenth Circuit has noted that “[t]he mere possibility that evidence is exculpatory does not satisfy the constitutional materiality standard.” United States v. Fleming, 19 F.3d 1325, 1331 (10th Cir. 1994).
“To be material under Brady, undisclosed information or evidence acquired through that information must be admissible.” Banks v. Reynolds, 54 F.3d 1508, 1521 n.34 (10th Cir. 1995) (citation omitted). In Cone v. Bell, the Supreme Court noted:
Although the Due Process Clause of the Fourteenth Amendment, as interpreted by Brady, only mandates the disclosure of material evidence, the obligation to disclose evidence favorable to the defense may arise more broadly under a prosecutor's ethical or statutory obligations. See [Kyles v. Whitley, 514 U.S. 419, 437 (1995)] (“[T]he rule in [Bagley] (and, hence, in Brady) requires less of the prosecution than the ABA Standards for Criminal Justice Prosecution Function and Defense Function 3-3.11(a) (3d ed. 1993)”). See also ABA Model Rules of Professional Conduct 3.8(d) (2008)(“The prosecutor in a criminal case shall” “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, and, in connection with sentencing, disclose to the defense and to the tribunal all unprivileged mitigating information known to the prosecutor, except when the prosecutor is relieved of this responsibility by a protective order of the tribunal”). As we have often observed, the prudent prosecutor will err on the side of transparency, resolving doubtful questions in favor of disclosure.
556 U.S. 449, 470 n.15 (2009). The Government bears the burden of producing exculpatory materials; a defendant has no obligation to first note that such materials exist. See Kyles, 514 U.S. at 437 (stating that the prosecution has an affirmative duty to disclose evidence, because “the prosecution, which alone can know what is undisclosed, must be assigned the consequent responsibility to gauge the likely net effect of all such evidence and make disclosure when the point of ‘reasonable probability' is reached”) (citation omitted); United States v. Padilla, 2011 WL 1103876, at *6 (D.N.M. Mar. 14, 2011). This obligation means that the government must “volunteer exculpatory evidence never requested, or requested only in a general way.” Kyles, 514 U.S. at 433.
“It is well settled that there is no ‘affirmative duty upon the government to take action to discover information which it does not possess.'” United States v. Tierney, 947 F.2d 854, 864 (8th Cir. 1991) (quoting United States v. Beaver, 524 F.2d 963, 966 (5th Cir. 1975, cert. denied, 425 U.S. 905 (1976)); accord United States v. Kraemer, 810 F.2d 173, 178 (8th Cir. 1987) (explaining that the prosecution is not required “to search out exculpatory evidence for the defendant”). On the other hand, “a prosecutor's office cannot get around Brady by keeping itself in ignorance, or by compartmentalizing information about different aspects of a case.” Carey v. Duckworth, 738 F.2d 875, 878 (7th Cir. 1984). “A prosecutor must disclose information of which it has knowledge and access.” Padilla, 2011 WL 1103876, at *7 (citing United States v. Bryan, 868 F.2d 1032, 1037 (9th Cir. 1989)). “A prosecutor may have a duty to search files maintained by other ‘governmental agencies closely aligned with the prosecution' when there is ‘some reasonable prospect or notice of finding exculpatory evidence.'” Id. (quoting United States v. Brooks, 966 F.2d 1500, 1503 (D.C. Cir. 1992)). “A prosecutor does not have a duty, however, to obtain evidence from third parties.” Id. (citing United States v. Combs, 267 F.3d 1167, 1173 (10th Cir. 2001) (observing that Brady does not oblige the government to obtain evidence from third parties)).
B. Rule 16
Rule 16 provides that the court regulates discovery. Fed. R. Crim. P. 16(d). “At any time the court may, for good cause, deny, restrict, or defer discovery or inspection, or grant other appropriate relief.” Fed. R. Crim. P. 16(d)(1). “The court may permit a party to show good cause by a written statement that the court will inspect ex parte. If relief is granted, the court must preserve the entire text of the party's statement under seal.” Id.
Further, Rule 16(a)(1)(E) provides:
(E) Documents and Objects. Upon a defendant's request, the government must permit the defendant to inspect and to copy or photograph books, papers, documents, data, photographs, tangible objects, buildings or places, or copies or portions of any of these items, if the item is within the government's possession, custody, or control and:
(i) the item is material to preparing the defense;
(ii) the government intends to use the item it its case-in-chief at trial; or
(iii) the item was obtained from or belongs to the defendant.
“Rule 16 is ‘broader than Brady' in that it mandates disclosure of any material information, whether exculpatory or not.” United States v. Smith, 2017 WL 3172790, at *2 (D.N.M. May 16, 2017) (citation omitted). But “Rule 16 does not authorize a blanket request to see the prosecution's file, ” and a defendant may not use the rule to engage in a “fishing expedition.” United States v. Maranzino, 860 F.2d 981, 985-86 (10th Cir. 1988) (citing Jencks v. United States, 353 U.S. 657, 667 (1957)).
The defendant bears the burden of making a prima facie showing of materiality. See United States v. Garrison, 2016 WL 8416755, at *3 (D. Colo. Sept. 22, 2016). Evidence is “material” under Rule 16 if “there is a strong indication that it will play an important role in uncovering admissible evidence, aiding witness preparation, . . . or assisting impeachment or rebuttal.” United States v. Graham, 83 F.3d 1466, 1474 (D.C. Cir. 1996) (internal quotation marks omitted, alterations in original) (quoting United States v. Lloyd, 992 F.2d 348, 351 (D.C. Cir. 1993) (internal quotation marks omitted)). The Eleventh Circuit has explained that under Rule 16(a)(1(E)(i), an item
need not be disclosed unless the defendant demonstrates that it is material to the preparation of his defense. A general description of the item will not suffice; neither will a conclusory argument that the requested item is material to
the defense. Rather, the defendant must make a specific request for the item together with an explanation of how it will be “helpful to the defense.” The defendant must “show” “more than that the item bears some abstract logical relationship to the issues in the case . . . .”United States v. Jordan, 316 F.3d 1215, 1250 (11th Cir. 2003) (internal citations, quotations, and some alterations omitted). “Although the materiality standard is not a heavy burden, the Government need disclose Rule 16 material only if it enables the defendant significantly to alter the quantum of proof in his favor.” Graham, 83 F.3d at 1474 (alterations, citations, and internal quotation marks omitted).
The Rule 16 Advisory Committee Notes provide that “[a]mong the considerations to be taken into account by the court will be the . . . protection of information vital to the national security . . . .” Rule 16 Advisory Committee Notes, 1966 Amendments, Subdivision (e).
C. Discovery Under the Classified Information Procedures Act
The Classified Information Procedures Act (“CIPA”), 18 U.S.C. App. III, is a procedural statute “that does not give rise to an independent right to discovery.” United States v. Lustyik, 833 F.3d 1263, 1271 (10th Cir. 2016) (citing United States v. El-Mezain, 664 F.3d 467, 519-20 (5th Cir. 2011)). In other words, the fact that a defendant seeks classified material does not create any further discovery rights than permitted under Rule 16. See United States v. Dumeisi, 424 F.3d 566, 578 (7th Cir. 2005). Classified information need only be produced to the defense if it is relevant and helpful. See United States v. Yunis, 924 F.2d 1086, 1089 (D.C. Cir. 1991). Likewise, CIPA allows the government to produce a summary or substitution in lieu of the classified information. See United States v. Moussaoui, 382 F.3d 453, 477 (4th Cir. 2004); United States v. Rezaq, 134 F.3d 1121, 1143 (D.C. Cir. 1998).
II. DISCOVERY REQUESTS
A. Brady Material
1. General request for Government to point out where Brady and Giglio material is located
According to M. Kuciapinski, as of the date she filed her Motion, the Government had produced nearly 100, 000 pages of documents, in addition to other forms of discovery. (ECF No. 412 at 6.) M. Kuciapinski requests that the Court order the Government to point out where in its voluminous production the Brady/Giglio material is located. (ECF No. 412 at 7-9; ECF No. 424 at 2-3.) She asserts that the defense has “taken extraordinary steps during phone calls with the Government of directly citing to various exculpatory events and distinct fact-based theories that undermine the prosecution and has also written the Government with specific types of information that are exculpatory and helpful to the defense and within the possession, custody, and control of the Government.” (ECF No. 412 at 8.) Despite defense counsel's actions, the Government has nonetheless “refused to identify where exculpatory and helpful information is located, and has provided no evidence that it has searched for such information in its custody and control.” (Id. at 8-9.)
In response, the Government states that it has acted in good faith in providing M. Kuciapinski's previous and current defense attorneys with requested discovery materials but that “[i]t is not the job of the government to point out where material discovery is . . . .” (ECF No. 420 at 2.) Requiring the Government to do so requires the Government to define what the defense believes might be material, based on unknown theories of the defense, and according to the Government “is a one-way street towards a discovery violation by the government.” (Id. at 3.)
Mr. Chakravarty and Ms. Smith are the sixth and seventh lawyers to represent M. Kuciapinski in this case.
The Court agrees. Most importantly, M. Kuciapinski has not cited any binding authority supporting the proposition that the Government must identify where in the discovery material it has produced any potential Brady/Giglio material is located. (See ECF Nos. 412, 424.) Instead, she relies on non-binding authority from the Eastern District of California and the District of Columbia. See United States v. Salyer, 2010 WL 3036444, at *6-7 (E.D. Cal. Aug. 2, 2010); accord United States v. Hsia, 24 F.Supp .2d 14, 29-30 (D.D.C. 1998), reversed in part on other grounds, 176 F.3d 517 (D.C. Cir. 1999). The Government states that it has disclosed discovery under the relevant Federal Rules of Criminal Procedure, the Jencks Act, 18 U.S.C. § 3500, Brady, Giglio, their progeny, other relevant case law, as well as the Discovery Conference Memorandum and Order (ECF No. 55) in this case. (ECF No. 420 at 3.) In this Circuit, it is not the Government's job to point out where Brady/Giglio material is located in the discovery record for a defendant. Therefore, the Court relies on the Government's representation that it is complying with its discovery obligations under Giglio and Brady, (ECF No. 420 at 3), and therefore denies this portion of the Motion.
2. Present and former investigating case agents' communications pertaining to this case, including text messages, emails, images and
M. Kuciapinski contends that “the investigation in this matter was flawed and that the agents were overzealous for the sake of their own investigative incentives.” (ECF No. 412 at 10.) She argues that this “is evidenced by the small sample of agent text messages that the Government disclosed (while refusing to produce the lion's share of agent communications)” and “by the fact that the agents and their superiors repeatedly attempted to persuade the U.S. Attorney's Office to take this case.” (Id.) On this basis, she argues that the case agents' notes and communications are exculpatory and constitute impeachment material that must be disclosed. (Id.)
In response, the Government notes that it has already provided a limited number of agents' text messages to M. Kuciapinski. (ECF No. 420 at 10.) However, in arguing that the Court should not order additional discovery of the agents' text messages and the like, the Government argues that the substance of the messages has already been articulated in reports that were disclosed to the defense as early as August 13, 2018. (Id.) The Government argues that the text messages are not Jencks Act statements because notes of a government agent “will not be Jencks Act statements when they are not complete, truncated in nature or have become an intertwined mix of witness testimony, investigator's selections, interpretations, and interpolations.” United States v. Simtob, 901 F.2d, 799, 809 (9th Cir. 1990). The Government's position is that there is no relevancy to the text messages, e-mails, images, and notes since they are not statements under the Jencks Act. (ECF No. 420 at 11.) Additionally, the Government contests that the agents' notes and messages constitute Brady material. (Id.) However, if the Court disagrees, the Government requests an in camera review of the materials before ordering production. (Id.)
As an initial matter, the Court concludes that M. Kuciapinski has not met her burden to demonstrate that the agents' communications constitute exculpatory or impeachment material, such that they must be disclosed under Brady or Giglio. In addition, the Court relies on the Government's representations that it is complying with its discovery obligations to disclose Giglio and Brady material, and to the extent any of the agents' communications are found to constitute exculpatory or impeachment evidence, the Government is under a continuing obligation to disclose such evidence. The Court has no basis from its past experience with the Office of the U.S. Attorney in this federal district to be concerned with the accuracy of the Government's representations on this issue. Accordingly, the Court denies this portion of the Motion.
3. Documents evidencing Ms. Kuciapinski's performance of and performance on prior government contracts
M. Kuciapinski requests evidence of her prior performance on other government contracts. (ECF No. 412 at 10.) She believes such evidence is material and exculpatory because it demonstrates that she has reliably performed on government contracts for decades and believed the Vesperlillet contract was another legitimate business opportunity. (ECF No. 412 at 10; ECF No. 424 at 5-6.) Additionally, she argues that the Government is required to disclose such documents to the extent such documents are in the possession of agencies acting on the government's behalf, such as the Air Force Office of Special Investigations, the National Reconnaissance Office, and the National Security Agency. (ECF No. 424 at 6.)
The Government states that it does not possess any documents and/or records regarding M. Kuciapinski's performance on prior contracts. (ECF No. 420 at 12.) Further, the Government does not have a duty to obtain evidence from third parties, and the defense may subpoena documents or materials from non-government entities if they can provide a just reason for the materials. (Id. (citing United States v. Combs, 267 F.3d 1167, 1173 (10th Cir. 2001) (observing that Brady does not oblige the government to obtain evidence from third parties)).)
The Court finds that to the extent any of M. Kuciapinski's prior government contracts are in the possession of third parties, the Government correctly states that under the law, it is not obligated to obtain such documents on M. Kuciapinski's behalf. As such, to the extent M. Kuciapinski requests prior government contracts that are in the possession of third parties, she may independently seek such evidence, but the Court will not order the Government to obtain it.
Regarding other prior government contracts that might be in the Government's or its agencies' possession, the Court denies M. Kuciapinski's request for such evidence. Evidence that M. Kuciapinski “reliably” performed services for the United States government on prior government contracts is not discoverable evidence under Federal Rule of Evidence 404(b) to the extent it demonstrates she would tend to perform in the same manner in connection with the Vesperlillet contract. (ECF No. 412 at 10.) Nonetheless, to the extent M. Kuciapinski requests such contracts as Brady or Giglio evidence, the Court relies on the fact that the Government is aware of the scope of its obligations under Brady and Giglio and that it is complying in good faith with those obligations. Accordingly, the Court also denies this portion of the Motion.
4. All documents and records related to Ms. Kuciapinski's security clearance, including from Joint Personnel Adjudications System (JPAS), including Joint Adjudication Management System (JAMS), Joint Clearance and Access Verification System (JCAVS), Scattered Castles, and other security clearance database records related to Ms. Kuciapinski's security clearance from 2001 through the present, including qualification and approval of security clearances, EQIP and SF-86, polygraph examinations, communications with security officials about sponsorship, including John Yokley and Mike Harris of PTFS, absence of any security or disciplinary violations, records from the Defense Office of Hearings and Appeals (DOHA) and time periods during which Ms. Kuciapinski's clearance was current
M. Kuciapinski requests evidence of her security clearance, arguing that the Government has misunderstood and consequently mischaracterized the inclusion of her security clearance level eligibility on her resume as a criminally false statement to the United States. (ECF No. 412 at 10.)
In response, the Government states that it provided additional discovery regarding M. Kuciapinski's background investigation records 12 days before the filing of this Motion. (ECF No. 420 at 13.) Additionally, the Government represents that much of the material M. Kuciapinski requests in the Motion has already been produced, including her DOHA report, which includes her JAMS status, and information regarding her JPAS. (Id.; ECF No. 420-3.) Generally, the Government states it has already disclosed the relevant information regarding M. Kuciapinski's security clearance and any other request is a broad fishing expedition and “a prime example of lawyers from Snell and Wilmer LLP seeking the government to do their work.” (ECF No. 420 at 13.)
In her reply, M. Kuciapinski further requests records related to her security clearances from all relevant sources which have not yet been produced, such as the Intelligence Community's (who sponsored the contract) database records, all Defense Department records, and JCAVS records that would reveal that at the time of PTFS's application for the contract, she was in fact eligible for the security clearance. (ECF No. 424 at 7.)
The Court relies on the Government's representation that it has disclosed all relevant records regarding M. Kuciapinski's security clearance. However, to the extent there are government agencies from which the Government has not requested such information, the Court will grant this portion of the Motion in part and direct the Government to determine whether such information exists, and whether it must be disclosed under the relevant Rules and case law. This portion of the Motion is otherwise denied.
The Court issues a cautionary note to M. Kuciapinski and her counsel insofar as she may file additional discovery requests in this case. The Court does not take lightly the fact that the Government demonstrated that it disclosed some of the evidence requested in this Motion years ago, and nonetheless, M. Kuciapinski requests the same discovery now. It is no excuse that M. Kuciapinski has retained at least seven lawyers over the course of this litigation. This type of redundant request will not be further tolerated, as it is a waste of judicial resources, and may result in sanctions if repeated.
5. All documents and records related to the Government's investigation into prime contractor, PTFS, and its President and CEO, John Yokley, including communications by PTFS representatives related to the Vesperlillet contract and to sponsorship of security clearance for Ms. Kuciapinski
M. Kuciapinski requests that the Government disclose “evidence related to the Government's investigation into the prime contractor and its CEO as well as the United States Attorney's Office decisions not to prosecute Ms. Kuciapinski but instead focus on the prime contractor and its CEO” because she contends such evidence “is material and exculpatory.” (ECF No. 412 at 10.) She contends this evidence will also provide “impeachment material as the prime contractor's CEO has been a witness in this matter and will likely testify at trial.” (Id.)
In response, the Government states that it is in the process of collecting various materials for the defense, including:
• Settlement Agreement between the United States Attorney's Office Civil Division with PTFS and John Yokley;
• Civil Investigation Demand by the United States Department of Justice to John Yokley;
• Subpoena duces tucum from the National Reconnaissance Office on John Yokley;
• John Yokley's CID testimony and exhibits; and
• John Yokley's April 4, 2017 PIA Interview.
(ECF No. 420 at 14.) The Government states that evidence regarding Yokley's sponsorship for M. Kuciapinski's security clearance, as well as his grand jury testimony, has been disclosed. (ECF No. 420-4.)
In her reply, M. Kuciapinski concedes that the Government has produced an additional 1, 377 pages of discovery on this issue, but she emphasizes that the Government has not addressed whether it has “communications or notes regarding communications with Mr. Yokley or PTFS (aside from Mr. Yokley's April 4, 2017 interview, CID testimony, and grand jury testimony).” (ECF No. 424 at 7.) She requests that the Government disclose whether it has such records and turn them over because Yokley is a significant witness and any exculpatory statements he made must be disclosed. (Id.)
The Court denies this portion of the Motion in part as moot (as M. Kuciapinski concedes that much of this discovery has already been provided to her) and in part on the merits; the Court trusts that the Government is aware of its ongoing discovery obligations under Brady with regard to this category of documents, and that it will continue to comply with those obligations in good faith.
6. All documents and records related to the Civil and Criminal Divisions of the United States Attorney's Office for the District of Colorado's investigation into Ms. Kuciapinski and prior decisions not to prosecute her
M. Kuciapinski argues that evidence related to the United States Attorney's Office's decision not to prosecute her but instead focus on the prime contractor and its CEO is material, exculpatory, and will provide impeachment evidence. (ECF No. 412 at 10.) She points to an August 2015 Investigative Activity Report which she argues shows there was “a reluctance to prosecute this case and a discussion as to whether the acts even rose to the level of federal prosecution.” (ECF No. 424 at 7; ECF No. 424-1.)
In response, the Government contends that there “is no evidence not to prosecute Ms. Kuciapinski” and that Rule 16(a)(2) exempts this type of request from discovery. (ECF No. 420 at 14.)
In light of the Investigative Activity Report, in the Court's view, this request is not merely a fishing expedition. As such, the Court grants this portion of the Motion in part and directs the Government to review its files and produce any responsive documents to the extent they exist and are required under Brady.
B. Rule 16 Material
1. All evidence seized and evidence to be used against Ms. Kuciapinski as a result of the Government's October 23, 2018 and May 16, 2019 searches of her residence, and all related notes, agent messages, analysis, records, and internal reports
M. Kuciapinski requests that the Government turn over evidence seized from her home under Rule 16. (ECF No. 412 at 12.)
In response, the Government states that regarding the October 23, 2018 search, the Government searched M. Kuciapinski's residence for the purposes of locating firearms; none were located at the residence and that information was documented in a report already disclosed to the defense. (ECF No. 420 at 14.)
Regarding the May 16, 2019 search, the Government states that it imaged approximately 20 electronic devices belonging to M. Kuciapinski. (Id.) After imaging, all the devices remained in her custody, and thus, the Government argues that the defense has the ability to review those devices since they are in the possession of their client. (Id.)
As for the Government's use of any seized materials, at the time the response brief was filed, the Government was still awaiting a review of the materials by a taint team because there was a reasonable possibility that privileged communications could be in the material seized and returned to the investigative agency by the forensic lab. (Id. at 14-15.) The Government states that the forensic lab withheld documents based on a taint list, and the Government intended to review the materials and provide anything it intends to use against M. Kuciapinski, along with any materials the Government must disclose under the Rules and governing case law. (Id. at 15.)
In her reply, M. Kuciapinski concedes that the Government agrees that it must comply with this request and requests a deadline for production. (ECF No. 424 at 8.)
Based on the representations of the parties, it appears as though there is no ongoing discovery dispute on this issue, and the Court denies this portion of the Motion as moot. Given the age of this Motion, the Court will not set a deadline for production and relies on the Government's continuing compliance with its discovery obligations and assumes these matters have already previously been disclosed.
2. All documents and records evidencing tests and examinations conducted on or in relation to any defendant or witness in this case, including any polygraphs conducted on Randolph Stimac, Kevin Kuciapinski, and Clinton West, pre- and post-polygraph interviews, and any examination as related to their security clearances
M. Kuciapinski requests any evidence of tests or examinations of co-defendants in the Government's possession or of which the Government is aware (especially a polygraph that M. Kuciapinski believes was administered to co-defendant Randolph Stimac in relation to his security clearance). (ECF No. 412 at 12.) She contends that such evidence must be turned over under Rule 16(a)(1)(F) because they are material to her defense. (Id.)
In response, the Government states that it is working with the intelligence agencies regarding personnel records for any potential government witnesses that were employed by these agencies. (ECF No. 420 at 17.) The Government states that it has disclosed Giglio letters to all of the agencies regarding any potential government witnesses. (Id.) Due to the classification of some of these records, the Government states that it will need to address potential disclosure issues with the Court ex parte under CIPA, noting that M. Kuciapinski's request “has potential merit and the government is aware of their potential discovery responsibilities. The government will have to address the same issues for co-defendant K. Kuciapinski. It is the government's opinion that once the Court makes a ruling after the government addresses the classification concerns, the same materials will be produced for both of the Kuciapinski(s).” (Id.)
Based on the Government's representations, the Court will set an ex parte meeting with the Government to discuss potential disclosure issues by way of separate order. Therefore, the Court takes this portion of the Motion under advisement pending its ex parte discussion with the Government.
3. All documents and records related to electronic surveillance of Ms. Kuciapinski's home or person, including any surveillance that was conducted by the intelligence community, Pretrial Services office, or without court authorization, and a description of any such surveillance regardless of whether it was court-authorized
M. Kuciapinski requests that the Government disclose “all documents and records related to electronic surveillance of Ms. Kuciapinski and her home, including records from the GPS tracker and electronic monitor that the Government has implemented, as well as all documents evidencing any direction by the Government to the pre-trial services office as it relates to Ms. Kuciapinski.” (ECF No. 412 at 13.) M. Kuciapinski argues that such electronic surveillance records are material to her defense and demonstrate the unusual lengths that agents went in this case and their bias against her. (Id.)
Additionally, she argues that these records are crucial under 18 U.S.C. § 3504, as it is not clear what electronic surveillance may have occurred outside of the prosecutor's knowledge, in light of the intelligence community's involvement and because the Pretrial Services office has communicated with Ms. Kuciapinski through the electronic monitor and has confirmed to her that it has audio/visual surveillance functionality which could be used to obtain information in excess of that which is permitted. (Id.) She further argues that documents “evidencing the Government's direction to pre-trial services offices [sic] as it relates to procuring information or performing tasks intended to aid the Government's prosecution” are also material to her defense and show the Government's overreach and engagement of Pretrial Services in investigative activity, which is a violation of the purposes of Pretrial Services. (Id.)
In response, the Government states that the electronic surveillance conducted by a pole camera on M. Kuciapinski's residence was disclosed in discovery. (ECF No. 420 at 15; ECF No. 420-5.) Further, the Government states that any other surveillance of M. Kuciapinski was documented in reports and provided to the defense, including any pictures taken by law enforcement. (ECF No. 420 at 15.)
In her reply, M. Kuciapinski acknowledges that the Government has indicated that it has fully complied with this request but insists that the Government “conduct diligence and provide an affirmative response as to whether additional surveillance materials exist.” (ECF No. 424 at 8.)
Based on the Government's representations and its knowledge of its ongoing discovery obligations, the Court finds there is no current discovery dispute on this issue and denies this portion of the Motion as moot. The Court will not direct the Government to conduct additional diligence and provide a response as to whether additional surveillance materials exist, relying on the Government's continuing compliance with its discovery obligations.
4. All documents and evidence, including but not limited to notes, reports, electronic messages, phone records related to any direction by the Government prosecutor or agents on the prosecution team to the Pretrial Services office related to Ms. Kuciapinski, such as conducting surveillance, coordinating raids on her home, drawing Ms. Kuciapinski away from her home, procuring information, or other tasks
In the Motion, M. Kuciapinski argues that “[d]ocuments evidencing the Government's direction to pre-trial services offices as it relates to procuring information or performing tasks intended to aid the Government's prosecution is also material to Ms. Kuciapinski's defense and shows the Government overreach and engagement of pretrial services in investigative activity, which is a violation of the purposes of pre-trial [sic] services.” (ECF No. 412 at 13.)
In response, the Government states that it has already provided a report in August 2020 that summarized any contact that was made by law enforcement and Pretrial Services. (ECF No. 420 at 16.) The Government notes that it does not believe that the report was discoverable, as it is not material to M. Kuciapinski's defense, but the Government nonetheless provided the report after it was requested. (Id.) Finally, the Government argues that “any records that pre-trial [sic] services keeps on the defendant are not in the possession of the government.” (Id.)
In her reply, M. Kuciapinski continues to request evidence related to Pretrial Services, relying on United States v. Combs, 267 F.3d 1167, 1172-75 (10th Cir. 2001). She argues the evidence “is exculpatory and material because it shows the abnormal and atypical lengths the Government will go in its crusade against Ms. Kuciapinski and the unreasonable conditions of pre-trial release that she has been subjected to by virtue of the Government's actions.” (ECF No. 424 at 9.)
Despite M. Kuciapinski's arguments, the Court denies this portion of the Motion. The Government states that Pretrial Services' documents are not in its possession, and thus, the Court finds they are precluded from discovery. See, e.g., United States v. Gonzalez, 2016 WL 8458986, at * 3 (D. Colo. May 18, 2016) (noting that “the Tenth Circuit has never held that the due process disclosure duties outlined in Brady and its progeny extend to independent judicial agencies such as pretrial services or the probation office”); United States v. Sanchez, 2018 WL 11240477, at *1 (W.D. Okla. May 17, 2018) (recognizing that pre-trial reports do not appear to be in the possession of the government, and, therefore are precluded from discovery).
Additionally, M. Kuciapinski's reliance on Combs is unavailing. In Combs , the Tenth Circuit addressed whether Brady violations might arise from evidence about a cooperating witness that was known by Pretrial Services but not by the prosecution during the “guilt phase” of criminal proceedings. The court noted “two lines of cases” addressing whether Brady applies to agencies such as Pretrial Services and the Probation Office: “one line suggests that Pretrial Services is not covered by Brady, and one line suggests that Brady is broadly construed to apply to agencies in reasonable proximity to the prosecution.” Id. at 1175. The Tenth Circuit took no position on the issue, however, concluding that the evidence disputed in Combs was not material. Id. at 1174.
C. Giglio and Henthorn Material
M. Kuciapinski requests that the Government oversee a review of all personnel files of each agent involved in this case for impeachment material. (ECF No. 412 at 13.) In response, the Government states it has and will continue to comply with the law. (ECF No. 420 at 17.) In her reply, M. Kuciapinski concedes that the Government has agreed that it will comply with her request and requests that the Court set a deadline for production. (ECF No. 424 at 9.)
Based on the representations of the parties, it appears as though there is no ongoing discovery dispute on this issue, and the Court denies this portion of the Motion as moot. Given the age of this Motion, the Court will not set a deadline for production of Giglio and Henthorn material and relies on the fact that the Government is aware of and is complying with its continuing discovery obligations under Giglio.
D. Request to Preserve All Evidence Related to this Matter
M. Kuciapinski requests that all physical evidence that may be destroyed, lost, or otherwise put out of the possession, custody, or care of the Government and which relates to the investigation in this case be preserved. (ECF No. 412 at 15.) Specifically, this request includes any electronic communications, including any text messages or emails, involving government agents and/or witnesses; any evidence seized from any defendant or third-party; and any material or percipient witnesses who might become unavailable. (Id.) Additionally, M. Kuciapinski requests that the Government be ordered to question all the agencies and individuals involved in the prosecution and investigation of this case to determine if such evidence exists, and if it does exist, to inform those parties to preserve any such evidence. (Id.)
In response, the Government argues that there is no right to the preservation or production of handwritten notes that have been incorporated into final reports or statements. (ECF No. 420 at 17 (citing United States v. Shovea, 580 F.2d 1382, 1389- 90 (10th Cir. 1978), cert. denied, 99 S.Ct. 581 (1978)).) Further, the Government argues there is no need to preserve any notes, e-mails, and/or texts that have been incorporated into a final report or statement and requests that the Court deny M. Kuciapinski's motion. (Id.)
The Court relies on the fact that the Government is cognizant of its ongoing obligation to preserve discovery under the requirements of the Federal Rules of Criminal Procedure and relevant Supreme Court and Tenth Circuit authority, and denies this portion of the Motion.
E. Request to File Further Motions
M. Kuciapinski states that because the prosecution has not yet turned over all discovery in this matter and defense counsel is still reviewing the discovery produced to date, she requests leave to file further motions. (ECF No. 412 at 15.) In response, the Government requests that the Court deny this request, noting that it has demonstrated that several items requested in the Motion were already provided to the defense in discovery, and the defense “just did not do a good job in reviewing the discovery.” (ECF No. 420 at 18.)
The Court grants in part and denies in part this portion of the Motion. Specifically, the Court will permit M. Kuciapinski to file further motions for leave to file a motion for production of a specific piece of discoverable information. The Court otherwise denies M. Kuciapinski's motion insofar as she requests leave to file further discovery motions carte blanche—with no time or content limits.
III. CONCLUSION
For the reasons stated above, the Court ORDERS:
1. Mykhael Kuciapinski's Motion for Discovery, to Preserve Evidence, and for Leave to File Further Motions (ECF No. 412) is GRANTED IN PART, DENIED IN PART, AND TAKEN UNDER ADVISEMENT IN PART, as set forth above;
2. To the extent the Court has ordered the Government to conduct a review for additional documents, the Government shall do so no later than December 15, 2021, and by no later than December 29, 2021, it shall file a status report explaining the results of its efforts; and
3. The Court will set by way of separate Order an ex parte, in camera review with the Government concerning M. Kuciapinski's request for “All documents and records evidencing tests and examinations conducted on or in relation to any defendant or witness in this case, including any polygraphs conducted on Randolph Stimac, Kevin Kuciapinski, and Clinton West, pre- and post-polygraph interviews, and any examination as related to their security clearances” by way of separate Order.