Opinion
Case No. 05CR0731-DMS.
August 30, 2005
HEATHER R. ROGERS, JOHN C. LEMON, FEDERAL DEFENDERS OF SAN DIEGO, INC., San Diego, California, Attorneys for Sergio Rodriguez-Delgadillo.
STATEMENT OF FACTS AND MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT'S OPPOSITION TO GOVERNMENT'S MOTION FOR PROTECTIVE ORDER
I. STATEMENT OF FACTS
Mr. Rodriguez-Delgadillo incorporates the Statement of Facts from his motions filed on May 21, 2005, and July 19, 2005, and adds the following.
On March 30, 2005, the government provided Mr. Rodriguez-Delgadillo with discovery in this case. Among the documents produced was the March 31, 2005 Report of Investigation of case agent, U.S. Immigrations and Customs Enforcement ("ICE") Special Agent David Snyder ("3/3 1/5 ROI"), attached as Exhibit A. The 3/3 1/5 ROI was irregular in several respects. In context, the recorded statements made little sense. Among the peculiarities was an admission of knowledge that did not fit with the other alleged statements. See 3/3 1/5 ROI at 4 ("RODRIGUEZ stated that he did know. . . .").
On April 19, 2005, Assistant United States Attorney Mary Fan called defense counsel and informed her that the aforementioned statement of knowledge was incorrect. The statement read as follows: "RODRIGUEZ stated that he did know that the van contained marijuana on this crossing." 3/3 1/5 ROI at 4. However, AUSA Fan reported that the sentence should read: "RODRIGUEZ stated that he did not know that the van contained marijuana on this crossing." AUSA Fan subsequently sent defense counsel a "corrected" 3/3 1/5 ROI ("Corrected 3/3 1/5 ROI") with the word "not" inserted. Corrected 3/3 1/5 ROI at 4, attached as Exhibit B. The correction was initialed by the case agent.
As detailed in Mr. Rodriguez-Delgadillo's Motions to Reconsider Denial of Evidentiary Hearing on Defendant's Motion to Suppress Statements; and Reconsider Denial of Motion to Suppress Statements Based on Violations of Miranda, filed on July 19, 2005 ("Motion to Reconsider Suppression of Statements"), and the related Declaration of Sergio Rodriguez-Delgadillo, filed on July 19, 2005, and attached as Exhibit A to the Motion to Reconsider Suppression of Statements, further investigation suggested that Agent Snyder's interrogation of Mr. Rodriguez-Delgadillo and the resulting ROI were otherwise suspect. Among other things, Mr. Rodriguez-Delgadillo's declaration suggests that his interview with Agent Snyder was pressured, and Agent Snyder's glaring reporting error suggests that he prepared his report incautiously.
On May 21, 2005, Mr. Rodriguez-Delgadillo filed a Motion to Compel Discovery and Preserve Evidence ("Motion to Compel") in which he requested, among other things:
. . . . copies of all written, videotaped or otherwise recorded policies or training instructions or manuals issued by all law enforcement agencies involved in the case (United States Customs Service, Border Patrol, INS, Department of Homeland Security, etc.) to their employees regarding. . . . the questioning of suspects and witnesses.
Motion to Compel at 10:15-26. In the United States' Response and Opposition to Defendant's Motions ("Opposition to Motion to Compel"), filed on May 19, 2005, the government objected to this request as "overbroad, unduly burdensome and not included under Rule 16." Opposition to Motion to Compel, 11:16-17. However, the government indicated that it would "turn over evidence within its possession which could be used to properly impeach a witness who has been called to testify." Opposition to Motion to Compel, 11:17-19.
On August 4, 2005, Mr. Rodriguez-Delgadillo filed an Ex Parte Application for Issuance of Rule 17(c) Subpoena ("Rule 17(c) Application"), in which he requested that the Court order the case agent to produce to the Court the following documents:
1. Copies of any and all training materials regarding interrogating or interviewing suspects or witnesses that this agent has ever received, consulted, reviewed or otherwise used in his capacity as an employee of the Department of Homeland Security or any of its predecessor agencies, including but not limited to, manuals, workbooks, bulletins, and memos.
2. Copies of any and all training materials regarding writing reports of investigation that this agent has ever received, consulted, reviewed, or otherwise used in his capacity as an employee of the Department of Homeland Security or any of its predecessor agencies, including but not limited to, manuals, workbooks, bulletins, and memos.
Rule 17(c) Application, 1:24-27, 2:1-4. At a status hearing held on August 12, 2005, the Court declined to issue the Rule 17(c) subpoena, instead requesting that counsel attempt to resolve this issue through the discovery process.
On August 15, 2005, defense counsel wrote a letter to government counsel requesting as Rule 16 discovery the materials previously requested in the Rule 17(c) Application. The government denied this request.
On August 19, 2005 the Court held a status hearing, at which it ordered government counsel to brief its opposition to Mr. Rodriguez-Delgadillo's request for training materials. On August 24, 2005, the government filed a Motion for Protective Order in which it again opposed Mr. Rodriguez-Delgadillo's discovery requests. This opposition to the government's motion follows.
II. THE REQUESTED TRAINING MATERIALS ARE MATERIAL TO MR. RODRIGUEZ-DELGADILLO'S DEFENSE
The government has both a statutory and constitutional obligation to provide Mr. Rodriguez with items material to preparing his defense. See U.S. Const., amends. V, VI; Fed.R.Crim.Pro. 16; Brady v. Maryland, 373 U.S. 83, 87 (1963). Mr. Rodriguez-Delgadillo has specifically requested the training materials related to interrogation and report writing used by Agent Snyder, the case agent who the government alleges interrogated Mr. Rodriguez-Delgadillo and wrote the primary Report of Investigation ("ROI") for this case. These documents are material to preparing Mr. Rodriguez-Delgadillo's defense. Accordingly, they must be produced.
Law enforcement training materials that are "material to preparing the defense" are discoverable under Rule 16. Rule 16 provides that, "[u]pon a defendant's request, the government must permit the defendant to inspect, copy or photograph books, papers, documents . . . or copies or portions of any of these items, if the item is within the government's possession, custody, or control and . . . the item is material to preparing the defense. . . ." Fed.R.Crim.Pro. 16. Additionally, where these materials may be favorable to the accused, the government must produce them in order to safeguard a defendant's due process rights. The Supreme Court has long held that "suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution." Brady v. Maryland, 373 U.S. 83, 87 (1963).
Mr. Rodriguez-Delgadillo contends that the statements that Agent Snyder obtained from him were obtained in violation of his constitutional rights using improper interrogation methods. Mr. Rodriguez-Delgadillo also contends that his statements were inaccurately reported. Given that the government's key evidence against Mr. Rodriguez-Delgadillo are his alleged statements, casting doubt on these alleged statements will be the touchstone of Mr. Rodriguez-Delgadillo's defense. Under these circumstances, information regarding Agent Snyder's training in interrogation and report writing could not be more material.
The reliability, veracity, and probative value of Agent Snyder's report and expected testimony regarding Mr. Rodriguez-Delgadillo's alleged statements is central to Mr. Rodriguez-Delgadillo's defense. In turn, information related to the agent's training regarding interviewing suspects such as Mr. Rodriguez-Delgadillo and reporting the contents of those interviews is necessary to investigate and prepare for the evidentiary hearing and trial, to effectively cross-examine this witness, and to effectively investigate and test the reliability, veracity, and probative value of this agent's testimony and report. As the Supreme Court noted in Kyles v. Whitley, 514 U.S. 419, 446 n. 15 (1995), "[w]hen . . . the probative force of evidence depends on the circumstances in which it was obtained and those circumstances raise a possibility of fraud, indications of conscientious police work will enhance probative force and slovenly work will diminish it." Whether or not Agent Snyder followed the procedures of his own agency in interrogating Mr. Rodriguez-Delgadillo and writing a report bears heavily on whether his work was "conscientious" or "slovenly." Id.
Not only is the requested information discoverable under Rule 16, the government must produce it pursuant to the Fifth Amendment and Brady, 373 U.S. at 87. Given that Agent Snyder's interrogation of Mr. Rodriguez-Delgadillo was not recorded and resulted in what is, at best, a contradictory and confusing report that required at least one correction, it is highly likely that information regarding Agent Snyder's training will be favorable to Mr. Rodriguez-Delgadillo's defense. As the Supreme Court reiterated in Kyles, 514 U.S. at 433, under United States v. Bagley, 473 U.S. 667 (1985), there is no difference between exculpatory and impeachment evidence for Brady purposes. See also United States v. Hanna, 55 F.3d 1456, 1459-61 (9th Cir. 1995) (reaffirming the government's duty to provide a criminal defendant with potential impeachment evidence; recognizing that "a police report recording the events surrounding the arrest of a citizen is an important official document required to be accurate, and not misleading"; and vacating and remanding where the panel could not "discern from the record whether the government fulfilled its obligation under Brady to produce all material impeachment evidence"). Mr. Rodriguez-Delgadillo expects that Agent Snyder acted contrary to his training when he interviewed Mr. Rodriguez-Delgadillo and prepared a written report of Mr. Rodriguez-Delgadillo's alleged statements. There is no question that an agent's acting in violation of agency policy is valuable impeachment evidence, particularly when the agent's violations involve the cornerstone of the agency's investigation into a defendant's alleged guilt. Furthermore, "the constitutional duty is triggered by the potential impact of favorable but undisclosed evidence," Kyles, 414 U.S. at 434. Thus, Mr. Rodriguez-Delgadillo has no burden to prove that the requested information will be favorable to him. To the contrary, this Court and the prosecutor must err on the side of safeguarding Mr. Rodriguez-Delgadillo's constitutional rights, not curbing them. Id. Under this liberal standard, the fact that the requested materials have the potential to favor Mr. Rodriguez-Delgadillo unequivocally triggers the government's duty to produce them. Id.
It is telling that the government bases its Motion for Protective Order largely on a out-of circuit, district court case from southern Indiana, thereby ducking the overwhelming Supreme Court precedent buttressing Mr. Rodriguez-Delgadillo's request. In any event, United States v. Pickard, 787 F. Supp. 155 (S.D. Ind. 1992), is readily distinguishable. In that case, the defendant's request was far broader than the request made here and included internal guidelines on the conducting of investigations, documents relating to the decision to suspend and resume contacts by federal agents, documents relating to the decision to investigate the case, and documents relating to the amount of money the defendants would be permitted to launder before arrest. Id. at 159. The defendant alleged that these materials were relevant to his entrapment defense. However, as the court pointed out, "[e]ntrapment is concerned with the predisposition of the defendant and not with the conduct of the government," and the requested materials would shed no light on the defendant's predisposition. Id. Unlike in that case, in this case, the requested materials are relevant to Mr. Rodriguez-Delgadillo's defense. As explained above, among other things, the requested materials have important impeachment potential, Kyles, 514 U.S. at 433, thereby implicating Mr. Rodriguez-Delgadillo's Fifth and Sixth Amendment rights.
Mr. Rodriguez-Delgadillo's request is especially urgent since the government alone conducted the investigation and interrogation leading up to Mr. Rodriguez-Delgadillo's alleged statements in this case. Mr. Rodriguez-Delgadillo was not represented by counsel when he was interrogated on March 29, 2005, and it appears that there were no non-government employed witnesses to the events that transpired after the agents contacted him. Furthermore, because the government has not produced verbatim transcripts, audiotapes, or videotapes of the agents' interrogation of Mr. Rodriguez-Delgadillo, it appears that Agent Snyder's report is the only memorialization of these events. Thus, the investigation, reporting, and interview performed by Agent Snyder, and whether or not it complied with established standards, is of utmost importance.
The Ninth Circuit's opinion in United States v. Sager, 227 F.3d 1138, 1145-46 (9th Cir. 2000), demonstrates the relevance of the requested materials. In that case, the Ninth Circuit held that it was plain error for a trial court to curtail defense counsel's inquiry into a police officer's investigation, where "[d]etails of the investigatory process potentially affected [the witnesses'] credibility and, perhaps more importantly, the weight to be given to evidence produced by his investigation." Id. In this case, as in that one, "the weight to be given to evidence produced by [a key witnesses' investigation]" is central to a criminal defense. Id. Furthermore, in this case, the proper weight of Agent Snyder's report and his expected testimony can only be discerned through the effective cross-examination guaranteed by the Sixth Amendment, including effective impeachment. See Carriger v. Stewart, 132 F.3d 463, 482 (9th Cir. 1997) (granting a writ of habeas based on government's failure to disclose impeachment evidence defense could have employed against a key government witness and reiterating the long-held principle that, "`if disclosed and used effectively, [impeachment evidence] may make the difference between conviction and acquittal'" (quoting Bagley, 473 U.S. at 676)); see also U.S. Const., amend. VI; Crawford v. Washington, 541 U.S. 36 (2004) (emphasizing the scope and importance of a defendant's right to effectively cross-examine the witnesses against him).
Not only are these materials highly relevant to Mr. Rodriguez-Delgadillo's defense and constitutionally guaranteed, no exception to the government's obligation to disclose these materials exists. Contrary to the government's assertions, Mr. Rodriguez-Delgadillo does not seek "highly sensitive" documents, and to the extent that the Court finds the documents "highly sensitive" upon in camera review, it can redact or, if necessary, exclude them. See, e.g., Sladek v. Bensinger, 605 F.2d 899, 900 (5th Cir. 1979). Nor is Mr. Rodriguez-Delgadillo engaging in a wholesale fishing expedition. To the contrary, Mr. Rodriguez-Delgadillo seeks specific training materials (those related to the case agent's instruction regarding interrogation of witnesses and report-writing) used by the case agent (the agent who allegedly interrogated Mr. Rodriguez-Delgadillo and wrote the only report the government has turned over in this case). Under the circumstances, the government is affirmatively obligated to produce the requested materials under Rule 16, Brady and its progeny, and the Fifth and Sixth Amendments.
Mr. Rodriguez-Delgadillo narrowed his request to the case agent to make his request less burdensome to the government based on his assumption that the government — as is typical — would call the case agent at the evidentiary hearing and at trial. To the extent that the government now asserts that it may not call the case agent, Mr. Rodriguez-Delgadillo expands his request to include agents the government intends to call as witnesses to Mr. Rodriguez-Delgadillo's arrest and interrogation, and agents involved in the preparation of reports related to Mr. Rodriguez-Delgadillo's arrest and interrogation. In an effort to make his discovery request reasonable, Mr. Rodriguez-Delgadillo has been both specific and forthcoming regarding what materials he needs and why. It would violate the clear principles ofBrady, Bagley, and Kyles, for the government to now attempt to bypass its discovery obligations by switching agents.
III. CONCLUSION
For the foregoing reasons, Mr. Rodriguez-Delgadillo respectfully requests that the Court grant the above motions.