CR. NO. S-10-0061 LKK [GGH] (E.D. Cal. Jul. 8, 2010)

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United States v. Salyer

United States District Court, E.D. California

Jul 8, 2010

CR. NO. S-10-0061 LKK [GGH] (E.D. Cal. Jul. 8, 2010)

Opinion

CR. NO. S-10-0061 LKK [GGH].

July 8, 2010

ORDER

GREGORY HOLLOWS, Magistrate Judge

Introduction and Summary

Defendant, Frederick Scott Salyer, ("Salyer") has made a comprehensive discovery motion in this criminal action. Salyer lists 87 categories of information, some with sub-categories which he desires produced. The motion encompasses several themes which will be discussed in detail below. One theme is — "who is the government" for criminal discovery purposes. Another appearing from the papers focuses upon the extent to which the government must organize the discovery information it discloses to a defendant along with the timing of discovery disclosures. A third theme centers on the materiality standard of evidence. Finally, the fourth major theme is the extent to which a defendant's Fifth or Sixth Amendment rights override express limitations in the discovery rules including work product, in essence, requiring the introduction of civil discovery concepts into criminal law.

Salyer's motion is granted in part and denied in part.

Background

On April 29, 2010, the United States (government) filed a superseding indictment alleging RICO violations, wire fraud, record keeping destruction et al. involving a federal investigation, conspiracy in restraint of trade and forfeiture counts. The indictment stems from the government's investigation disclosing (in its view) that Salyer and others associated with the now bankrupt SK Foods for an approximate ten year period: bribed other entity's purchasing managers to obtain contracts for SK products at prices higher than the market would otherwise dictate; caused the shipping of foods which were either misbranded, deficient in quantity, and deficient in quality or all of the above; fixed prices in violation of the Sherman Act. Finally, the government believes that Salyer obstructed justice in terms of altering corporate records in an attempt to conceal a co-conspirators involvement with SK Foods. To the extent more substantive factual background is necessary, it will appear in discussions of individual discovery requests.

The undersigned is not in possession of any initial written discovery request, and evidently there have been a number of oral demands for discovery made by Salyer. Given the time period relevant to the investigation, the rather large volume of business undertaken by SK Foods, the implementation of Title III wiretaps, the number of persons who have pleaded guilty already, and the inherent document intensive nature of investigations into business crimes, a great deal of documentary evidence is potentially at issue. The government, in the words of Salyer, has disclosed discovery "like a restless volcano . . . periodically spew[ing] forth new discovery" in a massive, disorganized mess. The exhibits to this discovery motion indicate that the government has produced discovery at various intervals commencing in or about March 2010. The government contends that a defendant should be careful what he periodically asks for, i.e., he is provoking the volcano, in terms of quantity of information requested "helpful to the defense," and that it is under no obligation to prepare defendant's case by organizing the requested volume of information thereby disclosed. The government further contends, in essence, that Salyer has mistaken Fed.R.Civ.P. 34 (requests for production in a civil case) with Fed.R.Crim.P. 16.

Adapted from United States v. Graham, 2008 WL 2098044 (S.D. Ohio 2008).

Defense counsel seems to make the argument, as he has in previous appearances, that from a due process standpoint, the case is "too big to try" because of the impossibility of reviewing all information already provided by the government, especially given Salyer's incarcerated status. Then, defense counsel makes a Rule 16 document request which would appear to double his problem. Although the undersigned is not so finding, there is some indicia that the present motion is part of making a record as to the massiveness of the case, not because there is a demonstrated need for the documents requested. As pointed out in the due process section, there are methods, not utilized yet by Salyer, which could help winnow the wheat from the chaff.

The government asserts that it has disclosed:

every confidential source recording; every wire intercept, every interview report; every search warrant inventory, every property receipt, every plea agreement; valuable government work product that sorts and analyzes seized records; and all business records obtained from third parties. . . . Also available for the defendant's inspection and copying are other records seized from SK Foods. This ruling process of production began four days after the Defendant made his Rule 16 request for discovery.

Opposition at 1-2

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The Defendant has received copies of, or has been given access to, all of the tangible evidence seized, subpoenaed, or otherwise received in Operation Rotten Tomato. The Defendant has also received copies of Government memoranda, witness statements, and impeachment materials sufficient for him to understand any defense to the Government's case-in-chief, and even, each substantial step in the investigation.

Opposition at 4.

The undersigned will plod through each of the 87 requests with subparts, infra. The sections which immediately follow will discuss the issue which are germane to adjudicating each request.

Criminal Discovery — In General

"There is no general constitutional right to discovery in a criminal case." Weatherford v. Bursey, 429 U.S. 545, 559, 97 S.Ct. 837, 51 L.Ed.2d 30 (1977). Over time a patchwork of statutory and judge-made rules has evolved to govern criminal discovery. Those rules include: (1) the Jencks Act; FN4 [omitted] (2) the Federal Rules of Criminal Procedure; and (3) Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).

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Rule 16 of the Federal Rules of Criminal Procedure governs criminal discovery. It has been significantly expanded since the Rules were first adopted, and it now imposes discovery obligations both on the government and the defense. See Fed.R.Crim.P. 16 (1966 Amendment); id. (1974 Amendment); id. (1975 Enactment). Unlike civil discovery, where some materials are automatically produced as a matter of right, in criminal discovery, the defendant must invoke the right to discovery. Compare Fed.R.Crim.P. 16(a)(1) with Fed.R.Civ.P. 26(a). Once a defendant makes a Rule 16 discovery request and the government complies, the government is entitled to seek reciprocal discovery from the defendant. See Fed.R.Crim.P. 16(b)(1). Work product of the United States and of the defense are not subject to discovery under Rule 16. See Fed.R.Crim.P. 16(a)(2), 16(b)(2).

United States v. Fort, 478 F.3d 1099, 1103 (9th Cir. 2007).

With respect to Fed.R.Crim.P. 16 discovery, a recent Ninth Circuit case found that Rule 16 "grants criminal defendants a broad right to discovery." United States v. Stever, 603 F.3d 747, 752 (9th Cir. 2010). "Broad" was undefined, and the undersigned does not view this term at odds with long established authority which recognizes only a "limited" right to discovery in criminal cases:

A criminal defendant is entitled to rather limited discovery, . . . . In a civil case, by contrast, a party is entitled as a general matter to discovery of any information sought if it appears "reasonably calculated to lead to the discovery of admissible evidence." Fed. Rule Civ. Proc. 26(b)(1).

Degen v. United States, 517 U.S. 820, 826, 116 S.Ct. 1777, 1781-82 (1996). See also Bowman Dairy Co.v. United States, 341 U.S. 214, 220, 71 S.Ct. 675, 679 (1951) (It was not intended by Rule 16 to give a limited right of discovery, and then by Rule 17 to give a right of discovery in the broadest terms.) Perhaps discovery is broad within the limited areas of discovery.

Finally, courts have distinguished between evidence that is exculpatory, and thus discoverable under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194 (1963) along with its progeny, and evidence that is material and thus discoverable under Rule 16.See United States v. Sanders, 893 F.2d 133, 137 (7th Cir. 1990) ("Due process requires the government to disclose exculpatory evidence [citing Brady]; Rule 16 provides for the production of other evidence."); United States v. Messerlian, 832 F.2d 778, 795 (3d Cir. 1987) ("Under Rule 16(a)(1)(D), the information that the government must disclose need not be exculpatory; it merely must be material to the preparation of the defense."). In general, the non-exculpatory material is often inculpatory (as such can be helpful in preparing the defense); if it were exculpatory, Brady would require its disclosure in any event. A metaphysical issue is present here in that Salyer asks for non-inculpatory, but not exculpatory, information which may be helpful to the defense. The line between non-inculpatory, helpful information and exculpatory information is difficult to draw.

Finally, while the Constitutional underpinnings of requiring production of exculpatory (Brady) and impeachment evidence(Giglio) are the same, the courts have developed different timing mechanisms regarding production of each. See United States v. Hopkins, 2008 WL 4453583 (E.D. Cal. 2008).

Timing of Discovery Production

The undersigned is not in a position to fault the government for the timing of discovery disclosure. Not only has the original written request not been made available, but there have been mostly undescribed oral requests. Neither party has made known what was initially, specifically requested, and when the specific information was produced.

In a case such as this, with volumes of potential discovery, the parties would be wise to request that the district judge assign a magistrate judge to hold a discovery conference and for that judge to be the assigned a judge for discovery purposes. In that way some form can be given to the initial processes, e.g., timing can be decided, organization of discovery can be initiated, clarifications to requests can be made, format of discovery decided, potential problems quashed and the like.

A further problem exists in this case, and in many other cases. The Congress and the Ninth Circuit, perhaps not contemplating problems in documents intensive cases, have been very restrictive in terms of timing of certain types of disclosures. Impeachment material is not due until after a witness testifies. United States v. Rinn, 586 F.2d 113, 119 (9th Cir. 1978) (Giglio material need not be disclosed until after a witness (Giglio material need not be disclosed until after a witness testifies)). Witness statements, impeaching or not, are also similarly timed pursuant to the Jencks Act, 18 U.S.C. § 3500. The Ninth Circuit has explicitly held that even Brady material, with respect to witness statements, is subject to the strictures of the Jencks Act. United States v. Jones, 612 F.2d 453, 454 (9^th Cir. 1979). More will be said about this later. Identification of witnesses pretrial is a matter of discretion in the first place, W R Grace, 526 F.3d 499 (9th Cir. 2008) (en banc), much less providing impeachment information or statements for a witness. The United States has nevertheless produced some of this material early, but resists disseminating anything further pursuant to Rule 16. A significant part of the information sought by Salyer runs afoul of the above authority.

In the absence of an express referral by the trial judge, court ordered variances from the above authority, if permissible at all, must be made by the trial judge who has a bigger picture of the logistical difficulties in this case than does the undersigned, or who might handle the logistics of pretrial disclosures et al. differently than the undersigned. This ruling, or deferral of ruling, as will be seen, is dispositive of a great deal of Salyer's requests.

Privileged Requests

Without specifying how with respect to each individual request, Salyer generally contends that allowing the government to assert privilege violates his Constitutional rights. This cannot be, however, because the Supreme Court has stated, as set forth above, that there is no Constitutional right to discovery.Weatherford v. Bursey, 429 U.S. 545, 559, 97 S.Ct. 837 (1977).See also United States v. Armstrong, 517 U.S. 456, 116 S.Ct. 1480 (1996) (defendant not entitled to discovery to mount an affirmative defense). It follows that if there is no Constitutional right to discovery in the first place, the federal rules and statutes which allow limited discovery cannot generally be unconstitutional because of their limitations.

This is not to say that a particular discovery limitation as applied to a particular circumstance, i.e., the limitation prevented specific and highly probative discovery on the entire theory of the defense, could not be found to be unconstitutional.See United States v. Stevers, supra, In that case the defendant had proffered a specific defense, and the Ninth Circuit held that the combination of limiting a specific discovery request for which a specific showing of materiality had been made, along with evidentiary ruling at trial which did not permit the specific defense to be supported, violated the Sixth Amendment right to present one's defense. Stevers, 603 F. 3d at 755. However, this situation is a far cry from simply and generally asserting that if the government asserts privilege to any of Salyer's general requests, for which a specific showing of materiality has not been made, Salyer's right to present a defense has nonetheless been violated. If this were the case, any limitation in federal discovery would be unconstitutional simply because a defendant had asked for discovery, but was precluded from getting it by the terms of Rule 16 or case law. United States v. Fort, 478 F.3d 1099 (9th Cir. 2007), one of the many cases which, for example, have upheld the government's assertion of work product privilege, would be implicitly overruled by Stever, See also United States v. Amlani, 111 F.3d 705 (9th Cir. 1997) (internal government logs privileged from disclosure). Obviously, all of Rule 16 and case law has not been declared facially unconstitutional as intimated by Salyer. Stever is limited to a situation where to uphold the privilege would be to cut out the heart of the defense.

In the present motion, Salyer has made no showing to any degree that upholding the government's work product privilege as set forth in Rule 16 and case law, or to respect any other limitation to federal criminal discovery, would so eviscerate the defense as to be unconstitutional.

Moot or Fully Answered Requests

Because the parties only generally identified what had been produced already, indeed, a massive amount of material, it was not possible for the undersigned to read Salyer's Rule 16 motion with its 87 plus sub-category requests with any idea whether the information had been provided already in whole, or in part, or whether the government had any idea that further documentation pertinent to the requests existed at all. In accordance with the undersigned's pre-hearing order, the government identified for each particular request whether it had disclosed all documents to the best of its knowledge, whether such was not the case, or whether it was unsure. In addition, the government identified for each request, information withheld because of privilege, primarily that work product. The requests which have been mooted by the government's disclosure have been set forth below in the request-by-request analysis.

Organization of Disclosed Discovery

Rule 16, unlike its civil counterpart Rule 34, is silent concerning the manner in which disclosures are required to be organized. See United States v. Pearson, 340 F.3d 459, 468 (7th Cir. 2003), vacated on other grounds, Hawkins v. United States, 543 U.S. 1097 (2005) (refusing to find the government at fault for not organizing Rule 16 discovery when the rule is silent). The government has, in very broad brush form, indicated what it has disclosed, but it has not been organized in any fashion except for bate stamping or general characterizations of sometimes massive amounts of individual information, e.g., documents seized in search warrant X. Case law discussing the organization of documentary discovery disclosed by the government is virtually non-existent. The legal issue here, as in many cases of first impression, involves a push versus pull — the principle that the court should not impose a large, substantive modification/supplementation to the discovery rules by judicial fiat, with the counter-principle that a court should be allowed case management discretion in applying the written word in an extraordinary case.

The Ninth Circuit can draw a rigid line when it so desires. See e.g., United States v. Rinn, supra. However, in analogous areas, the Ninth Circuit en banc has also approved of Rule 16 "supplementation that makes sense" (undersigned's characterization). In United States v. W.R. Grace, 526 F.3d 499 (9th Cir. 2008) (en banc), a case involving many witnesses and complex issues, the Ninth Circuit endorsed the district court's ability to order the pretrial preparation and filing of a witness list in an appropriate case even though Rule 16 was silent on the topic. The Court also held that the district court could order that an expert disclosure was required to include documents that the expert had reviewed in arriving at his or her opinion. See also United States v. Anderson, 416 F.Supp.2d 110, 113-114 (D.D.C. 2006) (government must categorize the documents it intends to use in its case-in-chief as opposed to other documents produced as "helpful to the defense.") But see United States v. Ferguson, 478 F. Supp. 2d 220, 243-244 (D. Conn. 2007) (questioning its authority to divert greatly from the express wording of Rule 16).

Some flexibility in application of the rules is commanded by the rules themselves. Fed.R.Crim.P. 2 admonished the court to interpret the rules to secure just and fair results, and to eliminate unjustifiable delay and expense. Fed.R.Crim. R. 57(b) provides that the court may "regulate practice in any manner consistent with federal law, these rules and the local rules of the district." (Emphasis added). The undersigned rejects the notion that this flexibility makes all the written words of the substantive rules superfluous, and rejects the notion that a judge can do anything simply because of a belief that he or she "knows better" than the rule makers. On the other hand, the undersigned rejects the notion that common sense cannot play a part in the administration of justice.

Therefore, as set forth at hearing, the undersigned requires that organization of discovery take place in accordance with the categories and sub-categories of discovery explicitly set forth in Rule 16 itself. While organizing massive amounts of evidence after the fact of all of its receipt may appear overwhelming, AUSAs and investigators can rather easily make this organization piecemeal as the evidence in a case comes in, and if they have not done so, would have to perform this organization in any event at some time if the case is ever to go to trial. In other words, performing an organizational task sooner rather than later is not the type of burden which concerns the undersigned to a great degree when there is a real and practical reason for performing it. Salyer's argument that he should not have to sift through millions of pages of documents to determine, for example, if a defendant's written statement has indeed been disclosed, has much force. Moreover, the incremental organization of massive amounts of documentary discovery into the easy-to-discern Rule 16 categories also enables the government to perform itsBrady-Giglio/Rule 16 obligations in a timely fashion. Utilizing organizational categories is the only realistic way that government attorneys can determine if they really have performed their discovery obligations, and avoids the "oops" disclosures just prior to trial, or even during trial.

The organizational disclosure can be made in individual packets that conform to the individual disclosure requirements, or can be satisfied by a prepared index with referenced Bate stamped page numbers. Of course, in a reasonable, rolling type production, an index can be amended.

Further, the government may not choose to lump all of its disclosed category into a Rule 16(a)(1)(E)(I) or any other (E) category thereby defeating the purpose of categorization. "Material helpful to the defense" or documents that the government "plans to use in its case in chief" or "items taken from the defendant" are residual categories for information not otherwise able to be organized in the other subsections of Rule 16(a). That is, a defendant's oral statements, for example, are categorized under Rule 16(a)(1)(a)(A); a scientific test is categorized under Rule 16(a)(1)(F). Salyer's point is well taken that statements of the defendant and scientific test should not be buried amidst an avalanche of other information — including a vast array of Title III tape recordings.

The undersigned does not require that the government further organize those documents appropriately produced under the sub-categories of Rule 16(a)(1)(E). If a defendant actually needs to know what specific documents the government plans to use at trial, Fed. Crim. R. 12(b)(4)(B) provides that avenue. No such request is at issue here. Moreover, a defendant can review any of the "E" sub-categories and understand without being told the vast majority of documents or items that are important to the government's case, or what might have been taken from the defendant. Moreover, the undersigned does not agree with Salyer that the government is tasked with further organizing the "material to the defense" category of discovery into whatever categories the defense might imagine. As set forth below, the government should not be punished with preparing the defense case simply because it errs up front in an abundance of caution in producing information which is "arguably" helpful to the defense. Moreover, it is ultimately the defendant's opinion as to whether the information is material; as explained above, in a general sense, everything inculpatory might be determined to be helpful in preparing a defense if only as to how to avoid the sting of the evidence. The court would push flexibility too far if it were to mandate that the government organize voluntarily produced "material" evidence as ordered by a defendant.

At hearing, the government graciously volunteered that it would serve its index of documentary and electronic evidence, prepared for its own purposes, on defendant. This is above and beyond what the court could order for Rule 16(a)(1)(E) materials whether or not the index is as complete as Salyer would prefer.

Finally, the court orders a limited organization ofBrady/Giglio material. There exist several situations to address: already disclosed documents or materials; Brady exculpatory information yet to be disclosed, both in the form of witness statements and non-witness statements; and Giglio information yet to be disclosed.

To the extent that discovery has been disclosed to Salyer, it will not do to state that "to the extent Brady/Giglio material is present, defendant will 'know it when he sees it'" — i.e., Salyer can wade through piles of documents or gigabytes of disclosed discovery to find it, and if he is lucky, the information will bite him much as a fisherman may eventually hook a fish by casting aimlessly without bait, if he casts long enough. Prosecutors have a duty to disclose what they reasonably view as exculpatory or impeaching material. Kyles v. Whitley, 514 U.S. 419, 437, 115 S.Ct. 1555, 1567 (1995) (quoting the ABA rule on point). Although in performing that duty they have been instructed to not "tack[] too close to the wind," id. 439, 115 S.Ct. at 1568, this does not mean that in a case such as this, prosecutors can goto the extreme of disclosing everything as possible Brady/Giglio material such that a pearl of exculpatory or impeaching information is inevitably lost in the sea of the mundane. In other words, at some point (long since passed in this case) a duty to disclose may be unfulfilled by disclosing too much; at some point, "disclosure," in order to be meaningful, requires "identification" as well.

To the extent that otherwise presently known, Brady/Giglio disclosable information has not yet been released, the United States accurately cites United States v. Jones, supra, in arguing that exculpatory material, subject to the Jencks Act, need not be disclosed until required by that Act. "Brady does not overcome the strictures of the Jencks Act." Jones, 612 F.2d at 454. One judge of this district has held that Jones has been superseded by later announced Supreme Court authority. United States v. Sablan, 2009 WL 3379011 *4 (E.D. Cal. 2009 OWW). However, with respect, the undersigned does not view the cited Supreme Court authority as expressly controlling the timing of Brady "witness statement" discovery such that it can be said that a Ninth Circuit precedent, old as it may be, has been overruled. However, Jones does not preclude identification of the yet-to-be disclosed exculpatory information. Similarly, as previously discussed,Giglio impeaching information generally need not be disclosed until a witness testifies, but again, pre-disclosure identification of that material has not been precluded.

With respect to this information which has not yet been turned over to the defense, and judging by the government's unwillingness to presently disclose Giglio or Brady (witness statements) there still exists, apparently, significant amounts of information which have not been turned over to the defense, Brady/Giglio duties are at their maximum. The court will order its identification.

Identification will also mitigate what would otherwise be insurmountable logistical problems at trial if large amounts ofBrady/Giglio information were being identified and disclosed during trial for the first time. Identification now will at least place defense counsel on notice of what may be produced such that some analysis or investigation can be performed ahead of time.

Finally, there may be a significant amount of information already acquired by the government pertinent to the Salyer investigation which the government has not yet reviewed. However, the vast amount of material in the possession of the government was seized, subpoenaed, or otherwise acquired on the ostensible basis that it was relevant to the investigation. If the undersigned's surmise is correct, and there still exists a reservoir of unreviewed materials, the court will not permit the government to avoid its Brady/Giglio obligations by holding, in essence, that the prosecutor can negate Constitutional imperatives by purposefully deciding not to review what was seized, or delaying until the last moment that review.

Therefore, the government shall, within twenty-one (21) days of the filed date of this order, identify what it believes can be reasonably construed as exculpatory or impeaching material:

(1) for documents already disclosed, the government shall specifically identify by Bate Stamp number or by specific title and location, the information which a reasonable prosecutor would view as exculpatory or impeaching;

(2) for documents yet to be disclosed, and subject to the Jencks Act, as well as normal Giglio disclosure, the government shall identify those documents or information in its possession, by author, date, subject matter, or other appropriate identifiers, which a reasonable prosecutor would view as exculpatory or impeaching;

(3) for exculpatory information not yet disclosed which is not subject to the Jencks Act, and which has not been disclosed, the government shall disclose it forthwith.

While the government's disclosures pursuant to the above are not an admission of what the trier of fact may ultimately determine to be exculpatory or impeaching, it will give Salyer a fair opportunity to understand the information which can reasonably be argued as such.

Who Is the Government

Defining the "government" is important in criminal discovery matters because the prosecution does not have to scour the files of every governmental agency on the chance that some pertinent information, or information that the defendant deems pertinent, may be disclosed. United States v. Bryan, 868 F.2d 1032, 1036 (9th Cir. 1989). The prosecution does not become the FOIA (Freedom of Information Act) agent for the defense. However, "[t]he prosecutor will be deemed to have knowledge of and access to anything in the possession, custody or control of any federal agency participating in the same investigation of the defendant."Id.

The above presumption is all that is needed in the vast majority of criminal cases in that it is seldom the case that federal agencies outside of the agencies interested and participating in the investigation will documents material to the case. However, the Ninth Circuit has made clear that the presumption is not necessarily the end point of the analysis depending on he case. United States v. Santiago, 46 F.3d 885 (9th Cir. 1995). In Santiago, the Ninth Circuit held that prison files in the possession of the federal Bureau of Prisons, an agency within the Department of Justice, would be "in the possession" of the United States Attorney because the BOP was a sister agency, and the prosecutor has actually acquired a good bit of information about the case by simply requesting it from the BOP.Id. at 893-94. The fact that the BOP was not the "investigating agency" was not determinative. "Access" to the requested information was the key, and such access was to be determined on a case by case basis.

In this case, the parties agree that documents within the possession of the United States Attorney's Office, the Anti-Trust Division of the Department of Justice, the FBI, IRS-CI (criminal), the USDA and FDA are the "government" for the purposes of this case. Salyer would add to that list, specifically, the Department of Commerce, the entire Department of Justice, the United States Trustee, the Office of the Inspector General and generally, any other agency or department of the United States (setting forth the agencies but indicating "not limited to.") See Footnote 14 on p. 19 of Salyer's Motion.

To the extent that Salyer requests that the United States search every governmental agency for the requested documents, the request is denied as not being based on any authority. Of course, to the extent that the United States Attorney or any of the agreed-to agencies have any of the documents in their actual possession, and these documents are otherwise material, they must be disclosed regardless of the original source of the documents or however acquired.

In determining whether the additional federal agencies or entities to which Salyer directs his requests have documents "in the possession of" the prosecution, a reasonable, balanced approach must be undertaken. To the extent that the agencies have supplied significant amounts of information to the prosecutor or investigators upon which the government will rely in this case, upon their request, like the situation of the BOP in Santiago, such documents are in the possession of the government for the purposes of this case. However, to the extent that the prosecution and investigators have simply queried agencies, private entities, or persons to confirm or dis-affirm leads, theories, facts, and have obtained a stray document or two, these agencies or persons are not within the government for purposes of this case. Nor are agencies which were, or have to be, subjected to formal processes to obtain information considered to be within the control of the "government" for purposes of this case. Thus, for example, simply because the United States obtained documentary information as a result of subpoena or search warrant does not place all documents of those entities or persons within the possession of the government for defendant's further requests. The need for formal process in the acquisition of documents is the antithesis of "access" as defined by the above cases.

At hearing, the undersigned queried the government extensively with respect to its contacts with the Department of Commerce and the United States Trustee. Contact with Commerce was almost nil. Although the government attorneys have had meetings with the United States Trustee concerned with the SK Foods, et al. Bankruptcy, such informal contacts have not risen to the level where the United States Trustee would be considered the "government" in the criminal matter. Moreover, to the extent that Salyer really requires Department of Commerce documents, identified in his motion, nothing prevents him from making a FOIA request. Also, with appropriate support and pursuant to well established standards, Salyer can subpoena specific documents from the United States Trustee via Fed.R.Crim.P. 17.

Defense counsel complained that with motions deadlines looming, a FOIA request would not be of much use. However, since the motions, if any, would in all probability be directed at documents seized by the government, and not at documents which are not in the government's possession, the Commerce documents, if of any use at all, can be procured before trial. Defense counsel did not identify any affirmative defense motion to which he would use Commerce documents.

Therefore, the undersigned finds that the "government" for discovery purposes is defined as the government has defined it already and as set forth above.

Materiality under Rule 16(a)(1)(E)(i)

Salyer seeks a vast array of information under the rubric of Rule 16(a)(1)(E)(i). The vast majority of his requests fall under this provision of the Rule.

To the extent that the government has already disclosed a volcano's worth of evidence, helpful or not, the issue of materiality is obviously moot. That is why the undersigned requested the government to specify for each request whether all documents pertinent to that request had already been disclosed to the best of its knowledge, or the defendant had been given access to them. Requests that are moot are identified below in the request-by-request rulings.

United States v. Santiago, 46 F.3d 885, 894 (9th Cir. 1995) sets the paradigm for disclosure of documents or evidence material to the defense:

A defendant must make a threshold showing of materiality, which requires a presentation of "facts which would tend to show that the Government is in possession of information helpful to the defense." United States v. Mandel, 914 F.2d 1215, 1219 (9th Cir. 1990). "Neither a general description of the information sought nor conclusory allegations of materiality suffice." Id.

The undersigned has previously opined on what "helpful to the defense" means as the term could be utilized in an under or over inclusive manner. As set forth above, "helpful" is something less than "exculpatory"; if this were not the case, there would be no need to have the discovery rule. On the other hand, "helpful" could be construed to mean nearly everything the government has looked at. Therefore, "helpful" is properly construed as evidence:

which is significantly helpful to an understanding of important inculpatory or exculpatory evidence. "'The materiality requirement typically 'is not a heavy burden,' rather, evidence is material as long as there is a strong indication that . . . [the evidence] will 'play an important role in uncovering admissible evidence, aiding witness preparation, corroborating testimony, or assisting impeachment or rebuttal.'" United States v. Jackson, 850 F.Supp. 1481, 1503 (D.Kan. 1994) quoting United States v. Lloyd, 992 F.2d 348, 351 (D.C. Cir. 1993) (emphasis added).

United States v. Liquid Sugars, 158 F.R.D. 466, 471 (E.D. Cal. 1994). "On the other hand, requests which are designed to generally cast for impeachment material . . . are not material. Such requests are simply speculative inquiries without basis in fact to believe that the information acquired will be significantly helpful." Id at 472. In determining materiality, a court will view the demonstrated or obvious burden of production on the government in light of the demonstrated need for the evidence, United States v. Jack, 257 F.R.D. 221 (E.D. Cal. 2009) (Drozd, J.), i.e., burden of production may require greater demonstration of specific need.

Santiago and another recent Ninth Circuit case, United States v. Stever, 603 F.3d 747 (9th Cir. 2010), are good examples of the application of the above paradigm and explanation of materiality. In Santiago, a case involving the murder of a prison inmate, the defendant had asked to see the prison files of all inmates to be called as witnesses by the government because evidence of gang affiliations would be introduced by the prosecution. Santiago reasoned that he would need this information for impeachment purposes, i.e., whether any of the witnesses were linked with rival gangs. The Ninth Circuit held:

These assertions, although not implausible, do not satisfy the requirement of specific facts, beyond allegations, relating to materiality. See Mandel, 914 F.2d at 1219. Although the defense did have access to other documents relating to the government witnesses and interviewed several other prison inmates, it did not cite any fact, such as a statement by the defendant or one of the interviewed witnesses, that might link one of the witnesses to a rival gang. Thus, since the defense has only asserted "conclusory allegations" without grounding in fact, Mandel, 914 F.2d at 1219, we cannot find that the information sought was material to the case.

Santiago, 46 F.3d 894-895. In other words, simply having an educated guess about documents' helpfulness was insufficient.

11. All documents authorizing or noting the seizure of the SK Foods' sample bags, the logging them in as evidence, the transmittals to the USDA or the FDA, the test reports, the disposition records, the chain of custody records, and all reports relating to that process.

Government Response:

(1) With regard to sample bags obtained from Manuel, the government has turned over the 302 indicating receipt from Manuel, chain of custody record, transmittal letter to USDA, and report of testing. For sample bags obtained during search warrant, the search warrant returns have been copied and the chain of custody records are available for inspection. No, as to other documents demanded.

(2) Rule 16(a)(2); Amlani. Court Ruling — See general ruling for requests 9-17 above.

12. All SK Foods' sample bags sent for testing to the FDA or the USDA so they may be subject to independent testing.

Government Response:

(1) No. The bags themselves are available for inspection. The contents were destroyed.

(2) No privileged documents withheld.

Court Ruling — See general ruling for requests 9-17 above. Salyer shall make arrangements to inspect the bags at a mutually agreeable time.

13. All correspondence, documents, e-mails, text messages, communications and faxes exchanged between Agent Artley or any other government agent and the FDA and the USDA.

Government Response:

(1) No.

(2) Rule 16(a)(2) insofar as this request relates to this investigation. Request is over broad in that it purports to seek documents that are unrestricted as to time, subject, or even investigation. Court Ruling — See general ruling for requests 9-17 above. The government is correct that these internal-to-the-government documents are precluded from disclosure.

Government Response:

(1) No.

(2) Rule 16(a)(2). It cannot be said that a single file containing all things SK Foods exists.

Court Ruling — See general ruling for requests 9-17 above.

Requests 18-19 — "All Documents Requests" Salyer Materiality Overview

As reflected in the affidavits in support of the search warrants, the government has acknowledged that during the course of its investigation it obtained and examined the defendant's tax returns. The government has also acknowledged the IRS was an integral part of the investigative team, yet it has not provided any of the requested documents which are plainly material to the defense of the case and to challenge the assertions made in the search warrant applications.

Rebuttal to Defendant's Materiality "Overview" for Requests 18-19

The Defendant makes no factual showing of materiality at all. Here, he does not even speculate. How the Defendant gets from "the IRS was involved in the investigation" to "ham entitled to all IRS files regarding me or my company" is untethered to any fact.

18. All correspondence, documents, e-mails, text messages, communications and faxes exchanged between Agent Artley or any other government agent and the IRS.

Government Response:

(1) No.

(2) Internal government document(s) excluded from discovery under Rule 16(a)(2). Request is over broad in that it purports to seek a vast universe documents that are unrestricted as to time, subject, or even investigation. Giglio information need not be disclosed until witness testifies. Prospective witness statements are excluded from Rule 16 and available only pursuant to Jencks at the time of testimony. Rule 16(a)(2), 18 U.S.C. 3500. This applies even if it is Brady. United States v. Jones, 612 F.2d 453, 454 (9th Cir. 1979). Outside the scope of Rule 16 as it appears sought in support of a "sword" motion to accuse the government of misconduct. Armstrong.

Court Ruling — This omnibus request is decidedly improper if materiality standards mean anything.

19. The entire investigative file maintained by the IRS regarding the defendant or SK Foods.

Government Response:

(1) No. The Defendant's tax returns gathered for this case will be disclosed shortly. Witness tax returns will be disclosed if they contain Giglio and only at or around the time of trial.

(2) Rule 16(a)(2). Request is over broad in that it purports to seek documents that are unrestricted as to time or investigation. Outside the scope of Rule 16 as it appears sought in support of a "sword" motion to accuse the government of misconduct. Armstrong. The request is outside the scope of Rule 16 because it is not supported by a factual showing of materiality. Now is premature for Giglio disclosures of sensitive documents such as tax returns.

Court Ruling — This omnibus request is decidedly improper if materiality standards mean anything.

20. All studies, inquiries or investigations by the Antitrust Division of the United States Department of Justice or any federal agency relating to the retail pricing of the products of the alleged "victim" companies named in the indictment, including those produced from ingredients purchased directly or indirectly from SK Foods.

Government Response:

(1) The government has made a diligent search in the files of the Antitrust Division for studies relating to the retail pricing of the products containing processed tomato products of Con Agra, Kraft, and McCain Foods, the victim companies named in the indictment. No such documents were found.

(2) The request is outside the scope of Rule 16 because it is not supported by a factual showing of materiality. The defendant makes only a conclusory statement that these records are "clearly material." He cites no case, and the government is aware of none, that in a criminal antitrust case it is relevant whether victims successfully passed along the cartel's price increases. Perhaps the defendant wants this for a state court civil case by indirect purchasers. Regardless, internal government document(s) are excluded from discovery under Rule 16(a)(2). Request is over broad in that it purports to seek a vast universe documents that are unrestricted as to time or investigation. Court Ruling — The government's response is satisfactory.

The government has acknowledged that former FBI agent Don Vilfer is a central figure in the investigation, that he provided reports to the FBI detailing, inter alia, his investigation of Randal Rahal and Anthony Manuel, and that until 2001. Mr. Vilfer served as a Special Agent in the White Collar Crimes and Computer Crimes Squads of the Sacramento FBI, the same office where he supervised Agent Artley. The documents and information requested are relevant for impeachment purposes.

Government Response:

(1) No.

(2) The defendant now admits that he seeks these materials because, depending on what they say, they might be helpful for impeachment. That is the same argument rejected in Santiago. In any case, Giglio information need not be disclosed until witness testifies. The request is over broad in that it purports to seek a vast universe documents that are unrestricted as to time or investigation. Given that Vilfer was Artley's supervisor, this would grant discovery over essentially every Artley case investigated during that period.

Court Ruling — The undersigned included Salyer's materiality overview in that it exemplifies the lack of materiality pursuant to the standards set forth in case law. Until further order of the district court, the Giglio timing objection is well taken.

31. All internal memoranda or reports which discuss the filing, the timing of the filing or the disposition of the civil legal actions brought by Morning Star against SK Foods or Scott Salyer, and particularly the state court lawsuit in Merced County for alleged theft of trade secrets.

Salyer Materiality Overview:

The government has agreed to turn over all Brady/Giglio materials, but, other than Anthony Manuel's plea agreement, has not disclosed whether he (or his family members) received additional consideration in exchange for his cooperation. Public records reflect that Morningstar filed a civil action against SK Foods and Manuel for alleged theft of trade secrets, as to which Manuel was dismissed. The report prepared by Vilfer, and adopted by Agent Artley in his search warrant affidavit, reveals that Manuel's wife was participatory in his fraudulent scheme but no document provided reveals whether she received "a pass" for that conduct because of his plea. Giglio entitles the defendant to discover whether additional consideration or benefits were provided to Manuel through the government's intervention, including any influence exerted by the government on Morningstar to dismiss him as a civil defendant.

Government's Response:

(1) No.

(2) Internal government document(s) excluded from discovery under Rule 16(a)(2). The defendant admits that this request is related to impeachment for Manuel. By the time that Manuel testifies, the government will disclose any benefits it conferred upon his wife.

Court Ruling — The government's objection is sustained except insofar as it is inconsistent with the previously set forth Brady/Giglio organization order. If additional Brady/Giglio materials exist they shall be disclosed or identified as appropriate.

32. Anthony Manuel's day planner, notes, diary, or any electronic records which he used or referred to refresh his recollection concerning past conversations as recounted in the June 4, 2007, Title III application, including the four-page document he provided Agent Artley as detailed at paragraph 53, page 19 of the application.

Government's Response:

(1) The four-page document has been turned over. Everything that Manuel provided in this investigation has been turned over.

(2) For other documents, the items are not in government's actual possession, custody, or control. Constructive possession theories do not properly invoke Rule 16(a)(1)(E). Defendant's supposition that Manuel's diaries might differ from what Manuel told SA Artley does not make a showing of materiality. Giglio information not disclosable until testimony.

Court Ruling — The government's response in (1) is satisfactory. No further response ordered.

33. All notes prepared by Anthony Manuel during the course of the investigation or otherwise relied upon by him.

Government's Response:

(1) Yes, for what notes Manuel gave to the government. Otherwise, no.

(2) Item(s) not in government's actual possession, custody, or control. Constructive possession theories do not properly invoke Rule 16(a)(1)(E). Defendant's supposition that Manuel's notes might differ from what Manuel told SA Artley does not make a showing of materiality. Giglio information not disclosable until testimony.

Court Ruling — The government's response is satisfactory, again, subject to the Brady/Giglio organization requirements.

The undersigned will stop inserting the Brady/Giglio disclosure/identification ruling as it applies to every request, and need not be interminably repeated.

34. All documents, including authorizations from the Department of Justice in Washington, D.C., relating to the approved use of Anthony Manuel as a confidential informant, including all documentation which authorized him to conduct limited criminal activity, and reports and other records pertaining to his use as an active informant during his employment at SK Food, including the FBI 137 or 270 files, any and all administrative memoranda that were used as part of this case file, requests for authorization, approvals and interim reporting documents to supervisory personnel in Sacramento and to FBI headquarters and to the United States Department of Justice.

Salyer Materiality Overview:

As the government's primary informant. Anthony Manuel agreed to wear a body wire in which he infiltrated and recorded company meetings and obtained various company records to assist the government investigators. Discovery provided to date reveals that Manuel personally engaged in illicit conduct while employed at SK Foods relating to the alteration of product labels and quality control data. According to Department of Justice guidelines, a special authorization is required for an informant to engage in unlawful acts, and administrative files are separately maintained by the FBI. Again, because much of the government's evidence in the case, including that presented by the government in support of its Title III and search warrant applications, turns on Manuel's activities as an informant, the information and documents sought are plainly material to the defense.

Again, the court's Giglio identification order is in effect for every request and will not be repeated again.

40. Exculpatory statements made by any person to the government or its agents, including any statements made by any informants or cooperating witnesses during any "proffer" or "Queen for a Day" session(s), interview session(s), or before the Grand Jury, that relate to the charges alleged in the indictment.

Government Response:

(1) Defendant has all memoranda of pre-indictment interviews (IRS MDIs, FBI 302s, and Antitrust Division Memos), regardless of whether those interviews were subject proffer agreements. The defendant can decide if the materials contain exculpatory evidence. If by "its agents," the defendant means persons and entities not on the prosecution team as set forth in the government's response, the answer is that we do not know and such statements are not in the government's actual possession forBrady purposes.

(2) Prospective witness statements are excluded from Rule 16 and available only pursuant to Jencks at the time of testimony. Rule 16(a)(2), 18 U.S.C. § 3500. This applies even if it isBrady. United States v. Jones, 612 F.2d 453, 454 (9th Cir. 1979).

Court Ruling — In accordance with the court's previous ruling, the government shall identify what it reasonably believes is exculpatory.

Requests 41-47 — Documents Related to the Conduct of the Investigation

Salyer Materiality Overview:

The government has acknowledged that former FBI agent Don Vilfer is a central figure in the investigation, that he provided reports to the FBI detailing, inter alia, his investigation of Randal Rahal and Anthony Manuel, and that he had multiple contacts with investigators. As the government's primary informant. Anthony Manuel had multiple contacts with investigators, agreed to wear a body wire in which he infiltrated and recorded company meetings, and obtained various company records to assist the government investigators.

While the government has provided typewritten witness statements and investigative reports concerning their contacts and interactions, it has not provided the recording of the initial interview of the government's primary informant, Anthony Manuel, which it admits it has in its possession but has not provided to the defense. Opposition at 6:6-10. The government has likewise not provided: any reports or documents detailing any contacts between Anthony Manuel and the government before he became a government informant in August 2006; any reports or documents detailing any contacts between Anthony Manuel and Don Vilifer before Manuel became a government informant in August 2006; all reports or documents detailing any contacts between Anthony Manuel and the government after he became a government informant in August 2006, including all such contacts between the time period of August 8, 2006 and October 18, 2006 to which no reports appear in the discovery; all reports or documents detailing any contacts between Anthony Manuel.

Government Rebuttal to "Materiality Overview" for Requests 41-47:

The Defendant is not entitled to these things merely to satisfy his curiosity about every step in the investigation. As inSantiago, a list of facts the Defendant wants to know is not a factual showing of materiality. There is no factual showing for any of these requests.

41. All correspondence, documents, e-mails, text messages, communications and faxes exchanged between Anthony Manuel and any government agent, including Agent Artley.

Government Response:

Government response:

(1) Defendant has whatever Vilfer provided to the government.

(2) With regard to any other documents, item(s) not in government's actual possession, custody, or control. Constructive possession theories do not properly invoke Rule 16(a)(1)(E).

Court Ruling — The government's response is satisfactory.

48. All documents and materials, including SK Foods product samples, taken by the following cooperating government witnesses or by other cooperating witnesses from SK Foods during the course of their employment there whether before or after he or she began cooperating with the government: Alan Huey, Jennifer Dahlman, Steven King, Shondale Seymour, Mark Grewal, Jeffrey Beasely, Mark McCormick, Lisa Crist, Jeanne Johnston.

Government Response:

(1) Yes, all extant tangible items taken from SK Foods and provided to investigators for this investigation have been produced or made available. The contents of the Manuel sample bags were destroyed: If any of these people took other things from SK Foods but did not give them to the government, such things have not been produced.

(2) Constructive possession theories do not properly invoke Rule 16(a)(1)(E). Request is over broad in that it purports to seek an unknown universe of things unrestricted as to time, subject, or investigation.

Court Ruling — The government's response is satisfactory.

49. All documents and materials, including SK Foods product samples, delivered or otherwise provided to Agent Artley or any government agent by the following cooperating government witnesses or by any other cooperating witness during the course of their employment at SK Foods: Alan Huey, Jennifer Dahlman, Steven King, Shondale Seymour, Mark Grewal, Jeffrey Beasely, Mark McCormick, Lisa Crist, Jeanne Johnston, Randy Yingling.

Government Response:

(1) With regard to the investigation, yes, except for the samples that were destroyed after FDA/USDA testing. However, these people sent things like their tax returns to the government in the many years they were employed at SK Foods. Such items have not been produced at this time.

(2) Request is over broad in that it purports to seek a vast universe documents that are unrestricted as to time, subject, or investigation. The request is outside the scope of Rule 16 because it is not supported by a factual showing of materiality.Giglio information need not be disclosed until witness testifies. Witness statements are not discoverable at this time.

Court Ruling — The government's response is satisfactory.

50. All USB "thumb drives," "zip drives" or "memory sticks" containing documents from SK Foods provided by Alan Huey, Jennifer Dahlman, and Jeffrey Beasely, or any other current or former SK Foods employee.

Government Response:

(1) Yes.

(2) n/a

Court Ruling — any dispute is moot.

51. All correspondence, documents, e-mails, text messages, communications and faxes exchanged between the following cooperating government witnesses or any other cooperating government witness and any government agent, including Agent Artley: Randal Rahal, Alan Huey, Jennifer Dahlman, Steven King, Shondale Seymour, Mark Grewal, Jeffrey Beagly, Mark McCormick, Lisa Crist, Jeanne Johnston, Randy Yingling, James Wahl.

Government Response:

(1) Yes, within the definition of "government" set forth in the Government's Memorandum in Opposition. Some correspondence through attorneys has not been disclosed.

(2) Giglio information need not be disclosed until witness testifies. Witness statements are not discoverable at this time. The request is outside the scope of Rule 16 because it is not supported by a factual showing of materiality. Request is over broad in that it purports to seek a vast universe documents that are unrestricted as to time, subject, or investigation.

Court Ruling — The undesigned is unclear why (2) was included if all documents have been produced (save for some attorney documents). The definition of government has been resolved in the prosecution's favor, so it appears that the dispute is moot.

52. All reports or documents detailing any contacts between the following cooperating government witnesses or any other cooperating government witness and the government: Randal Rahal, Alan Huey, Jennifer Dahlman, Steven King, Shondale Seymour, Mark Grewal, Jeffrey Beasely, Mark McCormick, Lisa Crist, Jeanne Johnston, Randy Yingling, James Wahl.

Government Response:

(1) Yes for reports. No for "all documents."

(2) Internal government document(s) excluded from discovery under Rule 16(a)(2). The request is outside the scope of Rule 16 because it is not supported by a factual showing of materiality. Prospective witness statements are excluded from Rule 16 and available only pursuant to Jencks at the time of testimony. Rule 16(a)(2), 18 U.S.C. 3500. This applies even if it is Brady.United States v. Jones, 612 F.2d 453, 454 (9th Cir. 1979). Giglio information need not be disclosed until witness testifies. Outside the scope of Rule 16 if sought in support of a "sword" motion to accuse the government of misconduct. Armstrong. Request is over broad in that it purports to seek a vast universe documents that are unrestricted as to time, subject, or investigation. Court Ruling — Subject to the court's Brady/ Giglio ruling, the government's response is satisfactory.

53. All correspondence, documents, e-mails, text messages, communications and faxes exchanged between Morning Star employee Gregory Wuttke and any government agent, including Agent Artley.

Government Response:

(1) Yes with regard to this investigation.

(2) Request is over broad in that it purports to seek a vast universe documents that are unrestricted as to time, subject, or investigation (his tax returns, e.g., have not been disclosed). The request is outside the scope of Rule 16 because it is not supported by a factual showing of materiality.

Court Ruling — It appears that the dispute is mooted by the government response in (1).

Government Response:

(1) No.

(2) The request is outside the scope of Rule 16 because it is not supported by a factual showing of materiality. Internal government document(s) excluded from discovery under Rule 16(a)(2). Giglio information need not be disclosed until witness testifies. Outside the scope of Rule 16 if sought in support of a "sword" motion to accuse the government of misconduct. Armstrong. Request is over broad in that it purports to seek a vast universe documents that are unrestricted as to time, subject, or investigation. Internal government document(s) excluded from discovery under Rule 16(a)(2).

Court Ruling — While it is not beyond conception that there may be some material documents pertinent to this request, this civil discovery "all documents" request is inappropriate in criminal discovery.

74. All reports or documents detailing any contacts between any government agent, including Agent Artley or the United States Attorneys prosecuting this case, and the bankruptcy Trustee or his counsel or the United States Trustee.

Salyer Materiality Overview:

The case law is manifest that the United States Trustee and the SK Foods bankruptcy trustee are sufficiently identified with the U.S. Department of Justice and a member of the prosecution team, regardless of whether or not this is a "bankruptcy fraud case." The bankruptcy Trustee's recent billing statements also make it clear that the prosecution has met and conferred with the Trustee and his counsel. Whether or not they are members of the prosecution team, to the extent the government has had any contact with the Trustees, their counsel, or the creditors in the bankruptcy, that information should be provided insofar as the Trustee's actions in bankruptcy-related proceedings constitute — government — conduct for purposes of the Fourth Amendment. Any subsequent contact or information-sharing between the United States Trustee, the bankruptcy Trustee, and the United States Attorneys Office is material to the defense claim in this regard and likely contains potential impeachment evidence.

Government Response

(1) No.

(2) "Likely contains potential impeachment evidence" is not materiality showing. (Def. Reply at 34.) Rather, it is exactly the argument that failed in Santiago, The request is outside the scope of Rule 16 because it is not supported by a factual showing of materiality. Internal government document(s) excluded from discovery under Rule 16(a)(2). Giglio information need not be disclosed until witness testifies. Outside the scope of Rule 16 if sought in support of a "sword" motion to accuse the government of misconduct. Armstrong. Request is over broad in that it purports to seek a vast universe documents that are unrestricted as to time, subject, or investigation. Internal government document(s) excluded from discovery under Rule 16(a)(2).

Court Ruling — The undersigned has included Salyer's materiality statement as it exemplifies the improper overbreadth and assertion that if it is conceivable that any documents within the "all documents" request could be helpful or impeaching, all documents must be produced. The government's objection is appropriate and the request is denied.

75. All correspondence, documents, e-mails, text messages, communications and faxes exchanged between any government agent, including Agent Artley or the United States Attorneys prosecuting this case, and any creditor involved in the bankruptcy proceedings, including the Bank of Montreal or ANZ Bank.

Government Response:

(1) No.

(2) "Likely contains potential impeachment evidence" is not materiality showing. (Def. Reply at 34.) Rather, it is exactly the argument that failed in Santiago. The request is outside the scopeof Rule 16 because it is not supported by a factual showing of materiality. Giglio information need not be disclosed until witness testifies. Outside the scope of Rule 16 if sought in support of a "sword" motion to accuse the government of misconduct. Armstrong. Request is over broad in that it purports to seek a vast universe documents that are unrestricted as to time, subject, or investigation.

Court Ruling — There is simply no specific showing of materiality. Salyer believes that pursuant to Rule 16 he is entitled to be informed on every aspect of the government's investigation, or what it has not investigated. This belief is erroneous. The request is denied.

76. All reports or documents detailing any contacts between any government agent, including Agent Artley or the United States Attorneys prosecuting this case, and any creditor involved in the bankruptcy proceedings, including the Bank of Montreal or ANZ Bank.

Government Response:

(1) No.

(2) "Likely contains potential impeachment evidence" is not materiality showing. (Def. Reply at 34.) Rather, it is exactly the argument that failed in Santiago. The request is outside the scope of Rule 16 because it is not supported by a factual showing of materiality. Giglio information need not be disclosed until witness testifies. Outside the scope of Rule 16 if sought in support of a "sword" motion to accuse the government of misconduct. Armstrong. Request is over broad in that it purports to seek a vast universe documents that are unrestricted as to time, subject, or investigation. Internal government document(s) excluded from discovery under Rule 16(a)(2).

Court Ruling — Same ruling as for #75.

77. A copy of any SK Foods Employee handbook, signed by Anthony Manuel, Randal Rahal, Alan Huey, Jennifer Dahlman, Steven King, Shondale Seymour, Mark Grewal, Jeffrey Beasely, Mark McCormick, Lisa Crist, and Jeanne Johnston.

Salyer Materiality Overview:

In the search warrant affidavits, the government asked for the opportunity to seize copies of SK Foods employee handbooks. The request is material to determine whether the government seized copies of handbooks during the search, or whether they were consensually provided by cooperating government witnesses outside of the search. In any case, such handbooks are material because the government itself, in indictments of alleged co-conspirators, has alleged that they guide the conduct of employees and form the basis for prosecution under the theory of deprivation of honest services to the person's employer.

Government Response:

(1) Unsure. If the government has these documents, they are available for inspection among the documents from SK Foods.

(2) n/a

Court Ruling — The government shall identify where in the seized documents these materials may be found. The government need not attempt to procure these documents if not already in the possession of the "government" as defined.

78. All interview reports of Ingomar principal Gregory Pruett (the government has produced an interview report with missing page(s)).

Government Response:

(1) Yes. Missing pages will be provided in forthcoming production.

(2) n/a

Court Ruling — The government has agreed to produce this document; there is no further need to order it.

79. The entire file maintained by the Department of Commerce and the Department of Justice regarding CTEG, including the application form(s) for the Export Trade Certificate of Review from the United States Department of Commerce applied for in December 2005, which was issued in February 2006, all reports or documents detailing any contacts with any CTEG members or principars, including any interview of Scott Salyer which occurred in or about October 2005, and all correspondence, documents, e-mails, communications and faxes exchanged between any CTEG member or applicant and the government.

Government Response:

(1) No. Materials from DOJ Antitrust have been disclosed, but not from Commerce.

(2) See below:

The Department of Commerce is not part of the "government" for discovery purposes pursuant to Rule 16. Thus, the government is not required to obtain or produce any Department of Commerce documents in response to these discovery requests.

This material is irrelevant and the defense has not carried its burden to show factually that it is material. The ETC specifically prohibits domestic price fixing. Neither the ETC nor its application process presents a defense to the charges of domestic collusion. Despite all the materials he has, the defendant shows no facts of materiality. He merely argues that the antitrust charges contained in the Indictment arise from the CTEG Export Trade Certificate. The charges actually pre- and post- date the certificate. This case is about domestic price fixing and bid rigging, not the ETC process. It is similarly insufficient to claim that the defense wants to "test the allegations" in the search warrant affidavit about CTEG's participants, regulations, and certificates. That's all public record. This is a "sword" request, and besides, the ETC and regulations speak for themselves. Finally, the defendant's request is over broad as it seeks all documents between any one of three companies and the government, without regard to time or subject matter. Court Ruling — The undersigned is not prepared to rule on the relevance argument or "sword" argument herein; however, as previously ruled, the Department of Commerce is not part of the government for purposes of Rule 16. Salyer must make a FOIA request, or if appropriate under standards governing criminal trial subpoenas, he may make a Rule 17 request.

80. Product samples taken by the FDA from the Kraft facility in Garland, Texas (as mentioned in the order dated July 5, 2007, extending authorization of the Title III intercept), and any testing reports, correspondence, electronic communications, the shipping documents, the applicable certificates of analysis from SK Foods, and all other documents and information related to that investigative effort by the FDA as part of the Title III and general investigative effort by the agencies participating in this case to test these samples, including any documents or communications in which the government requested that samples be destroyed.

Salyer Materiality Overview:

During the course of the investigation, the government sent product samples to labs for analysis. Among those samples tested by the FDA were product samples of purported adulterated tomato paste tracked to an SK Foods customer, Kraft Foods, in Garland, Texas. The results of that testing, which are needed by the defendant to assess the veracity of statements made by the government in connection with the Title III intercepts, has not been provided by the government.

This request is outside the scope of Rule 16 because it is not supported by a factual showing of materiality. Defendant cannot just broadly claim that he wants to check if these documents will help him in motions practice. This fails the materiality test, both as a "sword" request and because the courts do not enforce the executive branch's observation of its own internal procedures. United States v. Ani, 138 F.3d 390, 392 (9th Cir. 1998); United States v. Cacares, 440 U.S. 741, 755-56 (1979). Materials relevant to agency guidelines are not discoverable as "material to the defense" or Bradv. See e.g., United States v. Fernandez, 231 F.3d 1240, 1246 (9th Cir. 2000).

Court Ruling — The government's objections are sustained.

86. All documents concerning or relating to the application for surveillance at the San Diego Frozen Foods Convention, February 24-26, 2008.

Government Response:

(1) No such document exists.

(2) The defendant appears obsessed with establishing whether FBI complied with its own bureaucratic requirements, which are not court-enforceable.

Court Ruling — The government has sufficiently answered this request.

87. Access to the following SK Foods documents:

[sub-categories as set forth in original request]

SK Foods' original corporate books, all meeting minutes, all corporate minute books, director's records, public filings, notes and meeting memoranda for SK Foods and related entities, particularly those which pertain to the last count of the indictment.

All grower contracts from 2004 through 2008.

SK Foods' Book and Contract Specification Book, consisting of approximately two binders containing, Inter alia, all signed contracts with SK Foods' customers and the customers' contract specifications (likely taken from Alan Huey's office during the search executed in April 2008). All Processing Tomato Advisory Board (PTAB) grade certificates from 2004 through 2008 (administered by the California Department of Food and Agriculture; PTAB certifications are part of SK Foods' HACCP plan). All grower delivery reports from 2004 through 2008. Copies of bin tags and labels (by product, number and year) from 2004 through 2008. Lab results (hand sheets), by system and plant, 2004 through 2008. Pick lists, 2004 through 2008. Customer contracts and invoices, 2004 through 2008. Warehouse tags, 2004 through 2008. All plant inspection reports (as conducted by the USDA, FDA, GMI, NFPA, State of California). Copies of all third party audits from 1999 through 2008 (NFPA, SAFE, ABA, customer audits). Copies of CCOF annual audits (organic) for growers, processors, finished goods, retail labels, and the retail organic certification permit license. Copies of all kosher foods permits.

Salyer Materiality Overview:

As explained in the defendant's moving papers, SK Foods was a business which produced hundreds of millions of pounds of products every year. It generated thousands and thousands of emails, purchase and production records, product samples, testing analyses, certificates of analysis, contracts, letters, shipping records, and other documents as tomatoes were purchased from growers, manufactured into a product, packed, sold, and delivered. Inventory and production records, which are part of the government's case and material to the defense, controlled millions of pounds of products held and shipped to giants in the industry, such as Kraft Foods and Frito-Lay. Those companies produced their final product after testing the ingredients and followed strict labeling requirements. Since the indictment, including the RICO allegations, directly attack the integrity of the product, that process and associated documentation, from order to production to delivery, including product testing results, must be reviewed by the defense in sequential context. 5K Foods and customer email communications, correspondence, contract and production histories, are also germane to this process and all must be compared and related to determine whether the product was as desired by the buyer.

Government Response:

(1) The defendant has access to all documents the government seized from SK Foods. The documents that the government believes are significant have been imaged for the defendant at government expense. Since requesting discovery, counsel has spent about four hours inspecting the other SK Foods documents residing at the FBI.

(2) With regard to documents in possession of the bankruptcy trustee, the items are not in the government's actual possession, custody or control. Constructive possession theories do not properly invoke Rule 16(a)(1)(E).

Court Ruling — While there may be some material documents mixed within this omnibus request, it is not possible to tell or how to distinguish them from the vast amount of documentation which is not. The form of the request(s) is decidedly improper. Request denied.

CONCLUSION TO MOTION

Salyer's motion (docket # 109) is denied and granted as set forth herein. Production of any information ordered herein is to be made within 21 days of the filed date of this order. Disclosure and/or Identification of Brady/Giglio material is to be made within 21 days as well, and served on Salyer. The court will issue a separate order on the "Motion for Preservation" (docket #108).