Opinion
Criminal No. 03-30008-MAP.
June 17, 2004
MEMORANDUM AND ORDER WITH REGARD TO DEFENDANT PEDRO DELGADO'S MOTION FOR EXCULPATORY EVIDENCE (Document No. 394)
Presently before the court is Pedro Delgado ("Defendant")'s seven paragraph motion for exculpatory evidence. The court will first address the last two paragraphs of the motion and then the remaining requests. For the reasons which follow, Defendant's motion will be allowed in part.
A. Paragraphs 6 and 7
The Government represented in its original opposition that it had already provided Defendant with the information requested in paragraphs 6 and 7, namely, plea or cooperation agreements together with rewards, inducements, or promises made to each "accomplice witness." In a post-argument supplement, however, the Government indicated that, in fact, it had not yet produced the plea agreement for Carlos Orlando Morales, a co-defendant in the instant matter, but would soon do so. Paragraph 6 of Defendant's motion, therefore, will be allowed.
In his motion, Defendant defines "accomplice witness" as "any co-defendant . . ., as well as any immunized witness, whom the Government intends to call at trial."
The Government also indicated in its post-argument supplement that, in fact, it had declined, in accord with Local Rule 116.6, to produce the names, criminal records and descriptions of any pending criminal cases for six Government witnesses. The Government noted, however, that, to date at least, Defendant has not challenged the Government's declinations. That evidently being so, the court will allow Defendant's motion with regard to paragraph 7 subject to the Government's present declinations.
In so ruling, the court wishes to make clear that the Government's obligation with regard to the disclosure of promises, rewards and inducements, subject to its declination, cannot be satisfied merely by the production of plea agreements. First, the Government's obligation under Local Rule 116.2(B)(1)(c) applies to "any witness whom the government anticipates calling in its case-in-chief." This requirement obviously includes individuals with whom the Government does not have plea agreements. More importantly, as Defendant argues, a plea agreement will not necessarily contain the information sought, for example, a promise made to a co-defendant during a proffer session only. It is for that reason that Local Rule 116.2(B)(1)(c) requires the Government to provide a "statement" of any promise, reward or inducement, if not otherwise reduced to writing. In short, the Government needs to ensure that its response to Defendant's paragraph 7 request complies with these standards. See United States v. Hastings, 847 F.2d 920, 928 n. 8 (1st Cir. 1988) ("We fully agree with the district court that it would have been an intolerable travesty had the defendant pled guilty before learning about the rewards and inducements evidence which the government possessed.").
B. Paragraphs 1 through 5
Defendant's remaining requests are varied but essentially fall into two categories. First, Defendant seeks statements made by witnesses. However, as the Government argues, such "Jencks Act" material need only be provided twenty-one days prior to trial (or at such other time deemed appropriate by the trial judge at the initial pretrial conference). See Local Rule 117.1(A)(5). But see United States v. Casas, 356 F.3d 104, 116 n. 2 (1st Cir. 2004) (noting, without resolving, potential conflict between the Jencks Act and Brady v. Maryland, 373 U.S. 83 (1963)). The court agrees and, accordingly, will deny this part of Defendant's motion without prejudice. If Defendant wishes to obtain the information earlier than otherwise required, as it appears he does, that request should be raised with the trial judge at the initial pretrial conference.
The court notes that the Government is not opposed to allowing Defendant's counsel to review the grand jury testimony of any co-defendant.
Second, Defendant seeks materials relating to or generated as a result of proffer sessions with accomplice witness, including those whom the Government does not intend to call at trial. The essence of this request appears to concern Brady material, i.e., exculpatory evidence relating to "guilt or punishment" which might reasonably be considered favorable to his case. See id., 373 U.S. at 87. Defendant's request also appears to concern witness impeachment information. See Giglio v. United States, 405 U.S. 150, 151 (1972).
In the court's view, this request on Defendant's part has merit, at least insofar as the information sought concerns exculpatory information with regard to Defendant himself. It practically goes without saying that at least two requests set forth in Defendant's motion encompass such exculpatory material: (a) proffers of codefendants, whom the Government does not intend to call at trial, which contradict the proposed testimony of other co-defendants whom the Government does intend to call (paragraph 2); and (b) any material in the Government's possession that indicates any variations in any accomplice witness's proposed testimony (paragraph 4). Accordingly, these particular requests will be allowed to the extent they seek evidence favorable to Defendant that is material either to his guilt or punishment. To the extent Defendant seeks witness impeachment information, however, the request will be denied without prejudice. See Local Rule 116.2(B)(2) (requiring the disclosure of impeachment information no later than twenty-one days before trial).
In so ruling, the court is aware of Defendant's desire to collapse these two types of evidence — exculpatory and impeachment material — into one. See United States v. Sudikoff, 36 F. Supp.2d 1196, 1999 (C.D. Cal. 1999) (holding that, "[i]n the Brady context, `favorable' evidence is that which relates to guilt or punishment . . . and which tends to help the defense by either bolstering the defense's case or impeaching prosecution witnesses"). In other words, Defendant seeks to receive impeachment information now rather than waiting until twenty-one days prior to trial. The point is both well made and well taken. The District of Massachusetts, however, has chosen to require disclosure of such evidence in the bifurcated manner set out in subsections (1) and (2) of Local Rule 116.2(B). See generally Amy Baron-Evans, New Local Rules for Discovery in Federal Criminal Cases, Champion, Nov., 1999 at 19, 25.
Still, whatever category is assigned to such evidence in Local Rule 116.2(B), the burden on the Government is significant. In the court's opinion, the Government is required to cull the evidence — particularly the proffer evidence which Defendant seeks — to ensure that exculpatory or impeachment materials are discovered and produced within the time limits set by the rules. This is particularly important here since, as the court understands it, a good portion of the Government's case centers on the testimony of co-defendants who have agreed to change their pleas and cooperate. Moreover, as the Government is no doubt aware, any evidence which can reasonably be deemed to fall into one or more category must be produced at the earlier time. See Local Rule 116.2(B)(5).
C. Conclusion
For the reasons stated, the court ALLOWS paragraph 6 of Defendant's motion and paragraph 7 subject to the Government's present declinations. The court also ALLOWS so much of paragraphs 1 through 5 of Defendant's motion which seek exculpatory evidence, as described, relating to either Defendant's guilt or punishment. In all other respects, Defendant's motion is DENIED without prejudice.
IT IS SO ORDERED.