Opinion
No. CR 13-00282 PJH (DMR)
01-21-2014
UNITED STATES OF AMERICA, Plaintiff, v. ANTONIO GOMEZ, Defendant.
ORDER RE PARTIES' JOINT
DISCOVERY LETTER [DOCKET NO.
42] AND DEFENDANT'S MOTION TO
UNSEAL DOCUMENTS [DOCKET NO.
55]
Before the court is the parties' December 4, 2013 joint discovery letter in which Defendant Antonio Gomez requests pretrial discovery. [Docket No. 42 (Joint Letter).] The government argued that immediate release of the identity of a confidential informant as well as certain other witness information would cause grave concerns regarding witness safety and/or tampering. In support of this argument, pursuant to Federal Rule of Criminal Procedure 16(d), the government filed ex parte submissions under seal on December 4, 2013, including the sworn declarations of two law enforcement officers. [Docket Nos. 45 (application and order to seal), 46 (ex parte notice), 47 (declaration), 48 (application and order to seal), 49 (ex parte notice), 50 (declaration).] On December 13, 2013, the government presented a further ex parte sealed submission which contained a supplemental declaration by one of the officers with newly discovered information offered in support of the safety arguments. [Docket Nos. 51 (application and order to seal), 52 (ex parte notice), 53 (supplemental declaration).]
The court held a hearing on December 18, 2013 during which it announced its rulings on the discovery motion. At the hearing, Defendant challenged the validity of the Rule 16(d) process, and requested permission to file a motion to unseal the ex parte submissions. The court granted Defendant's request, and set a briefing schedule. [Docket No. 55 (Mot. to Unseal).] This order sets forth the court's ruling on Defendant's motion to unseal, and memorializes the discovery rulings made at the December 18, 2013 hearing.
I. Background
On May 2, 2013, the government filed an indictment against Defendant charging him with violations of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B)(viii) (possession with intent to distribute methamphetamine); 18 U.S.C. § 924(c)(1)(A)(i) (possession of a firearm in furtherance of a drug trafficking crime); and 18 U.S.C. § 922(g)(1) (possession of a firearm and ammunition by a felon). [Docket No. 1.] The charges stem from a March 2009 raid of a house on Saklan Road in Hayward, California by the Hayward Police Department ("HPD"). HPD surrounded the property in order to apprehend Defendant, who allegedly was subject to two active arrest warrants. An HPD officer spotted Defendant leaving the residence; after Defendant noticed the police, he attempted to retreat. HPD then raided the property and arrested him. After Defendant was taken into custody, HPD searched the property based on a warrantless search condition for probationer Pamela Malone, who lived on the premises. As a result of the search, HPD recovered a number of firearms as well as marijuana and methamphetamine. Following the raid, Defendant was prosecuted in Alameda County Superior Court on pre-existing charges and was sentenced to a term in state prison. In May 2013, approximately two weeks before his parole was scheduled to commence, Gomez was charged in the current federal prosecution with possession of the firearms and drugs recovered during the March 2009 HPD raid. (Joint Letter 1-3.)
All factual descriptions regarding Defendant's arrest are taken from the parties' joint letter.
On August 21, 2013, the parties filed a joint letter brief in which they set forth their disputes regarding the timing of the production of unredacted witness statements and material pursuant to the Jencks Act, 18 U.S.C. § 3500. [Docket No. 18 (First Joint Letter).] At the time, Defendant was represented by prior counsel. The court held a hearing on August 28, 2013 and ordered the parties to meet and confer regarding a heightened protective order to govern discovery in this matter; the court further ordered the parties to submit either a stipulated proposed protective order or a joint letter outlining any remaining disputes. [Docket No. 23.] The parties did not file anything on the deadline provided by the court. On October 6, 2013, Defendant filed a motion for appointment of new counsel, which the Honorable Phyllis J. Hamilton granted on October 16, 2013. [Docket Nos. 26, 28.] The court appointed Defendant's present counsel on October 23, 2013. [Docket No. 29.] The parties filed the instant joint discovery letter on December 4, 2013. The government subsequently filed three discovery-related ex parte submissions under seal pursuant to Federal Rule of Criminal Procedure Rule 16(d) . [Docket Nos. 45-53.] The court held a hearing on the joint discovery letter on December 18, 2013. At the hearing, the court informed Defendant that the sealed submissions set forth the factual underpinnings for the government's safety concerns regarding witnesses in this case, and that given these concerns, the court would delay (but not prohibit) discovery of certain witness information. Defendant objected to the government's presentation of ex parte evidence, and sought and obtained leave to file a motion to unseal the government's submissions. No trial date has been set or requested.
Rule 16(d) provides that "[a]t any time the court may, for good cause, deny, restrict, or defer discovery or inspection, or grant other appropriate relief. The court may permit a party to show good cause by a written statement that the court will inspect ex parte. If relief is granted, the court must preserve the entire text of the party's statement under seal."
II. Legal Standards
"There is no general constitutional right to discovery in a criminal case." Weatherford v. Bursey, 429 U.S. 545, 559 (1977). Federal Rule of Criminal Procedure 16 governs criminal discovery. It imposes obligations on both the government and the defense. United States v. Fort, 478 F.3d 1099, 1102 (9th Cir. 2007). Rule 16(a) identifies particular materials that the government must disclose to the defense, including the defendant's oral statements in response to interrogation. Fed. R. Crim. P. 16(a)(1)(A). In addition, upon a defendant's request, the government must permit the inspection of documents and objects such as "books, papers, documents, data, photographs, tangible objects, buildings or places . . . if the item is within the government's possession, custody, or control" and the object is "material to preparing the defense." Fed. R. Crim. P. 16(a)(1)(E). "[F]ederal prosecutors are deemed to have 'possession and control' over material in the possession of other federal agencies as long as they have 'knowledge' of and 'access' to that material." Fort, 478 F.3d at 1103 (citing United States v. Santiago, 46 F.3d 885, 893 (9th Cir. 1995)). Rule 16(a) also identifies information that is not subject to disclosure, such as "reports, memoranda, or other internal government documents" made by a government attorney or government agent in connection with investigating or prosecuting the case, and statements made by prospective government witnesses except as provided in the Jencks Act. Fed. R. Crim. P. 16(a)(2).
The Jencks Act "requires prosecutors to turn over to the defense statements made by testifying witnesses if those statements are in the prosecutor's possession." Fort, 478 F.3d at 1102 n.4. However, such statements may not be "the subject of subpena [sic], discovery, or inspection until said witness has testified on direct examination in the trial of the case." 18 U.S.C. § 3500(a).
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Under Rule 16(d), a court may, for good cause, "deny, restrict, or defer discovery or inspection, or grant other appropriate relief." Fed. R. Crim. P. 16(d)(1). A party may "show good cause by a written statement that the court will inspect ex parte," and if relief is granted, the court must seal and preserve the entire text of the party's statement. Fed. R. Crim. P. 16(d)(1). In other words, Rule 16(d)(1) "expressly authorizes the court to deny discovery of information sought by a defendant based on an ex parte showing by the government of the need for confidentiality." United States v. Innamorati, 996 F.2d 456, 487 (1st Cir. 1993). In determining whether to deny, restrict, or defer discovery, courts must take into consideration "the safety of witnesses and others, [and] a particular danger or perjury or witness intimidation." Fed. R. Crim. P. 16 advisory committee's notes (1966 Amendments); see also United States v. Fort, 472 F.3d 1106, 1131 (9th Cir. 2007) (Fletcher, J. dissenting) (noting that "[t]he Rules Advisory Committee specifically designed Rule 16(d)(1) to provide a mechanism to protect witness safety, and to grant considerable discretion to the district court in drafting orders under that rule." (citing Fed. R. Crim. P. 16 advisory committee's notes (1974 Amendment))).
Criminal Local Rule 16-1 sets forth additional procedures for disclosure and discovery in criminal matters. Under Local Rule 16-1, the assigned Judge or Magistrate Judge may set a schedule for disclosure of information required by Rule 16 or any other applicable rule, statute, or case authority. N.D. Cal. Crim. L.R. 16-1(b). In addition, Local Rule 16-1(c) sets forth additional information which the government must disclose to the defendant in accordance with a schedule established by the parties or by the assigned Judge. This includes a summary of any evidence of other crimes, wrongs, or acts which the government intends to offer under Federal Rule of Evidence 404(b) and a summary of any co-conspirators' statements which the government intends to offer under Federal Rule of Evidence 801(d)(2)(E) so that the court may rule on the admissibility of the proffered evidence and/or statements. N.D. Cal. Crim. L.R. 16-1(c)(3), (4).
III. Discussion
A. Defendant's Motion to Unseal
Defendant moves to unseal the government's Rule 16(d) ex parte submissions so that he may meaningfully address the contentions therein. The court relied on the factual information contained in the ex parte sealed declarations in reaching its determination that early disclosure of certain witness information is not warranted due to the existence of significant witness safety concerns. Defendant asserts that excluding him and his counsel from understanding the allegations lodged against him in the ex parte submissions makes it impossible for him to challenge the government's presentation.
In the Ninth Circuit, there is a "strong presumption in favor of access to court records." Foltz v. State Farm Mut. Auto. Ins. Co., 331 F.3d 1122, 1135 (9th Cir. 2003). This includes "access to criminal proceedings and documents filed therein," and "extends to pretrial proceedings as well as in the trial itself." CBS, Inc. v. U.S. Dist. Court for Cent. Dist. of Cal., 765 F.2d 823, 825 (9th Cir. 1985). However, such access "is not absolute and can be overridden given sufficiently compelling reasons for doing so." Foltz, 331 F.3d at 1135. In order to seal documents, a court must determine whether "(1) closure serves a compelling interest; (2) there is a substantial probability that, in the absence of closure, this compelling interest would be harmed; and (3) there are no alternatives to closure that would adequately protect the compelling interest." In re Copley Press, Inc., 518 F.3d 1022, 1028 (9th Cir. 2008) (quotation marks omitted) (quoting Oregonian Publ'ng Co. v. U.S. Dist. Court, 920 F.2d 1462, 1466 (9th Cir. 1990)). If a court determines that sealing is necessary, it must "articulate the factual basis for its ruling, without relying on hypothesis or conjecture," in order to allow for meaningful appellate review. Foltz, 331 F.3d at 1135.
Here, Defendant argues that the government must make a greater showing to seal the materials at issue because they have been closed to a party - Defendant - and not only to the public. In support, Defendant cites United States v. Abuhamra, 389 F.3d 309, 328-29 (2d Cir. 2004), in which the Second Circuit considered the circumstances under which a court could rely on ex parte evidence to deny a defendant's post-conviction bail application. The court held that "such submissions should generally not be received or considered by district courts," but that "extraordinary circumstances" might warrant the court's receipt of ex parte evidence in opposition to bail release. Id. at 328. In order for this narrow exception to apply, the court held that the four factors outlined by the Supreme Court in Waller v. Georgia, 467 U.S. 39, 48 (1984), to close to the public certain criminal proceedings must be satisfied. Those factors are "(1) the party seeking to close the hearing must advance an overriding interest that is likely to be prejudiced, (2) the closure must be no broader than necessary to protect that interest, (3) the trial court must consider reasonable alternatives to closing the proceeding, and (4) it must make findings adequate to support the closure." Id. at 329 (quoting Waller, 467 U.S. at 48) (quotation marks omitted). Further, given that a defendant, and not just the public, is denied access to ex parte evidence in opposition to bail, the Second Circuit imposed two additional requirements: first, the government must disclose to the defendant "the gist or substance of the reasons advanced in the government's sealed submission," and second, the court must carefully scrutinize "the reliability of the sealed submission." Id. at 330-31. Here, Defendant asks the court to evaluate and meet each of the six Abuhamra factors in determining whether the documents should continue to be sealed.
The court declines to apply the Abuhamra factors here. Abuhamra does not deal with ex parte proceedings involving pretrial discovery, "an area that is peculiarly within the discretion of the district court." United States v. Napue, 834 F.2d 1311, 1319 n.3 (7th Cir. 1987); see also Fort, 472 F.3d at 1131 (district courts have "considerable discretion" to draft orders under Rule 16). Instead, Abuhamra and the other cases cited by Defendant involve the submission of ex parte evidence in connection with pre- and post-trial detention proceedings, where there is no statutory authority for the submission of ex parte evidence, such as exists in Rule 16(d). See United States v. Acceturro, 783 F.2d 382, 391 (3d Cir. 1986); United States v. Acevedo-Ramos, 755 F.2d 203, 206 (1st Cir. 1985). Here, Rule 16(d)(1) expressly permits the government to demonstrate good cause to deny, restrict or defer discovery based on an ex parte submission. The court used the ex parte information for the purposes authorized by the rule - that is, to determine that production of certain witness discovery should be deferred in this case. The witness discovery will not be withheld altogether from Defendant. As previously ordered at the December 18, 2013 hearing, Defendant will receive the delayed witness material approximately two weeks before trial, subject to a strict protective order. This timing will allow Defendant to prepare his defense while mitigating against factually-supported concerns that release of the information may lead to witness intimidation, injury, or even death.
Defendant acknowledges that there are "rare occasions that permit ex parte filings" and documents to be filed under seal, citing Civil Local Rule 79-5 and Criminal Local Rule 56-1. However, he challenges the government's reliance on Rule 16(d)(1), arguing that the rule provides "insufficient guidance regarding when an ex parte submission is appropriate" and that it allows for such submissions "without any showing whatsoever." (Mot. to Unseal 3.) Defendant argues that Rule 16(d)(1) subjects criminal defendants twice to the unfairness of "secret" evidence; first, in connection with the ex parte submission itself, and then again with respect to the denial of discovery based upon the submission. (Mot. to Unseal 4.) However, Rule 16(d)(1) allows for the exercise of the court's discretion in determining whether a party has shown good cause for restricting discovery. In this case, the government presented the court with sufficiently compelling evidence relating to witness safety; the reasons supporting sealing are apparent from the sealed record enabling meaningful review. The declarations by two experienced law enforcement officers present information obtained through their own investigations and personal observations. They contain specific allegations that relate to the risk that Defendant could tamper with, injure, or even kill witnesses in this case. One declaration explores the role of a confidential informant in Defendant's arrest. That information is relevant to the witness safety issue, as well as the question of whether to defer or deny disclosure of that witness's identity. Per Rule 16(d), the materials have been preserved in the record. They are available to the district court as well as the Court of Appeals, should Defendant seek review or eventual appeal of this court's order. Accordingly, Defendant's motion to unseal the government's Rule 16(d) ex parte submissions is denied.
B. Joint Discovery Letter
In their joint discovery letter, the parties set forth nine disputed categories of information sought by Defendant. The court will address each category in turn.
1. Brady/Giglio Material
The first category of information calls for exculpatory and impeachment material pursuant to Brady v. Maryland, 373 U.S. 83, 87 (1963) and Giglio v. United States, 405 U.S. 150, 153-54 (1972). Specifically, Defendant seeks all evidence that suggests that individuals other than Defendant possessed the contraband recovered during the raid, as well as all exculpatory and impeachment material regarding witnesses. Defendant contends that the government's obligation to exercise diligence to obtain exculpatory evidence extends to state law enforcement officers involved in the investigation leading to Defendant's arrest, citing United States v. Blanco, 392 F.3d 382, 388 (9th Cir. 2004). Defendant also argues that the court has authority to order the government to produce all Brady material immediately, under penalty of dismissal.
Under Brady, prosecutors have an "affirmative duty to disclose evidence favorable to the defense." Kyles v. Whitley, 514 U.S. 419, 432 (1995). The scope of favorable evidence includes everything that is "material either to guilt or to punishment." Brady, 373 U.S. at 87. The prosecutor's "constitutional duty is triggered by the potential impact of favorable but undisclosed evidence." Kyles, 514 U.S. at 434. Evidence is material when, "considered collectively, not item by item," id. at 436, it would create a "reasonable probability" of a different result for the defendant. Id. at 433 (quoting United States v. Bagley, 473 U.S. 667, 682 (1985)). "A 'reasonable probability' is a probability sufficient to undermine confidence in the outcome." Bagley, 473 U.S. at 682. Knowledge of all evidence in the possession of the government, and any state agency working with the prosecution, is attributed to the prosecutor. Giglio, 405 U.S. at 154. Therefore, "the individual prosecutor has a duty to learn of any favorable evidence known to others acting on the government's behalf in the case, including the police." Kyles, 514 U.S. at 437; see also Carriger v. Stewart, 132 F.3d 463, 480 (9th Cir. 1997) (en banc) (noting that "[b]ecause the prosecution is in a unique position to obtain information known to other agents of the government, it may not be excused from disclosing what it does not know but could have learned.").
With respect to the timing of the production of Brady material, "Brady does not necessarily require that the prosecution turn over exculpatory material before trial." United States v. Gordon, 844 F.2d 1397, 1403 (9th Cir. 1988) (emphasis in original). Instead, "disclosure 'must be made at a time when [it] would be of value to the accused.'" Id. (citing United States v. Davenport, 753 F.2d 1460, 1462 (9th Cir. 1985)); accord United States v. Fernandez, 231 F.3d 1240, 1248 n.5 (9th Cir. 2000). In other words, due process requires only that Brady material be disclosed in time for its "effective use at trial." United States v. Coppa, 267 F.3d 132, 142 (2d Cir. 2001). Further, "[w]hen the defense seeks evidence which qualifies as both Jencks Act and Brady material, Jencks Act standards control." United States v. Jones, 612 F.2d 453, 455 (9th Cir. 1979); accord United States v. Alvarez, 358 F.3d 1194, 1211 (9th Cir. 2004); see also United States v. Diaz, No. CR 05-0167 WHA, 2008 WL 360582, at *1 (N.D. Cal. Feb. 8, 2008) (noting "the Jencks Act trumps Brady.").
At the hearing, the government's attorney acknowledged the prosecution's duty to obtain any evidence favorable to the defense from all state and federal law enforcement agencies involved in the investigation of this case. The prosecution represented that it has produced the complete case files for this matter from HPD, ATF, and the San Leandro Police Department ("SLPD"). It has arranged for evidentiary viewings for defense counsel. The prosecution also verified at the hearing that, in response to Defendant's specific requests, it had sought a number of other pieces of evidence which it intended to disclose in a matter of days, following review.
The government confirmed that to date, the only information that has been withheld from Defendant are certain witness statements contained in the case files. The government redacted these particular witness statements on the grounds that their production implicates significant safety concerns, as detailed in the government's Rule 16(d) submissions. According to counsel, the government has produced other unredacted witness statements representing approximately 75% of the witness material contained in the case files. In addition, the government contends that the redacted statements qualify as Jencks Act material that may not be disclosed prior to the trial testimony of each witness. Therefore, at this time, the government represents that the only potential Brady material that has not been produced to Defendant is Jencks Act material pertaining to witnesses for whom the government has serious safety concerns. As noted, Jencks Act standards control the timing of witness statement disclosure, even if the statements qualify as Brady material. See Jones, 612 F.2d at 455.
At the December 18, 2013 hearing, the court informed the parties that the judge who is presiding over trial in this matter typically orders disclosure of Jencks Act material fourteen calendar days before trial, subject to a protective order. Given that there is no trial scheduled in this case, the court ruled that it is premature to set a schedule for the production of Jencks material at this time.
2. Identity of Witnesses
Defendant next seeks the identity and last known address of each person present at the Saklan Road residence on the date of the March 2009 raid. According to Defendant, the discovery produced to date by the government reflects that twelve individuals other than Defendant were present at the residence during the raid. However, only six of the twelve have been identified. Defendant contends that identifying and investigating the remaining six individuals is material to his defense, and argues that he is entitled to this information pursuant to Rule 16(a)(1)(E). The government opposes the request on the grounds that Rule 16 does not provide for the disclosure of the identities and addresses of witness. In addition, the government contends that there are significant witness safety concerns in this case, as detailed in their Rule 16(d) submissions, and that the request is premature as there is no trial date set, nor has one been requested.
Rule 16 provides that upon request, "the government must permit the defendant to inspect and to copy or photograph books, papers, documents, data, photographs, tangible objects, buildings or places, . . . if the item is within the government's possession, custody, or control and . . . the item is material to preparing the defense." Fed. R. Crim. P. 16(a)(1)(E)(i). The rule does not specifically require the disclosure of witnesses. Defendant cites three cases to support his position that the court has the authority to order the disclosure of witnesses, but none of the cases cited involved the concerns about witness safety that are present in this case. See United States v. W.R. Grace, 526 F.3d 499, 503 (9th Cir. 2008); United States v. Stever, 603 F.3d 747, 752 (9th Cir. 2010); United States v. Hernandez-Mesa, 720 F.3d 760, 768 (9th Cir. 2013).
The court finds that the government has shown good cause to defer disclosure of the currently withheld witness information due to substantial concerns regarding witness safety. However, as there is no trial set in this matter, setting a date for disclosure at this time would be premature.
3. Evidence Regarding the Government's Charging Decisions
Defendant next seeks evidence regarding the decisions to bring, negotiate, or decline charges as to any persons regarding the recovery of the contraband at issue in this case. Defendant argues that the requested materials bear on the question of third-party culpability and are relevant to his claim that the four-year delay of the present indictment violated his constitutional right to due process. The government opposes this request on the grounds that it is barred by Rule 16(a)(2) and that production of such material would violate the attorney work-product privilege and the separation of powers principle.
Defendant cites no authority to support his entitlement to internal government charging decisions. In fact, Rule 16 explicitly states that it does not "authorize the discovery or inspection of reports, memoranda, or other internal government documents" made by a government attorney or agent in connection with investigating or prosecuting a case. Fed. R. Crim. P. 16(a)(2). Defendant is requesting documents that clearly fall under Rule 16(a)(2): substantive communications by prosecutors about the case to other law enforcement agents. Discovery of such material also raises concerns about attorney work-product, attorney-client privilege, and separation of powers. See United States v. Stone, No. CR12-0072-JCC, 2013 WL 5934346, at *3 n.3 (E.D. Cal. Nov. 5, 2013). Defendant is not entitled to the government's communications about why it prosecuted him or its charging decisions about any other individuals connected to the March 2009 raid. Accordingly, this request is denied.
4. Identity of the Confidential Informant
Defendant seeks an order compelling the government to disclose the identity of the confidential source regarding Pamela Malone's use of the Saklan Road residence. According to Defendant, in order to support the search of the residence based on her purported warrantless search condition, the government must demonstrate that HPD possessed probable cause to believe that she resided there. Defendant thus argues that the government must disclose that witness's identity under Roviaro v. United States, 353 U.S. 5360-61 (1957). The government argues that Defendant's request is not covered under Rule 16(a). It also argues that Defendant has failed to show that disclosure of the informant would be relevant to at least one defense and that disclosure would put the informant at risk, and made a Rule 16(d) submission in support of its position.
In Roviaro, the Supreme Court held that the government may exercise its privilege not to disclose the identity of a confidential informer. 353 U.S. at 59. However, the trial court may require disclosure "[w]here the disclosure of an informer's identity, or of the contents of his communication, is relevant and helpful to the defense of an accused." Id. at 60-61. In order to balance the "public interest in protecting the flow of information against the individual's right to prepare his defense," id. at 62, the Ninth Circuit has instructed courts to examine "(1) the degree of the informant's involvement in the criminal activity; (2) the relationship between the defendant's asserted defense and the likely testimony of the informant; and (3) the government's interest in nondisclosure." United States v. Gonzalo Beltran, 915 F.2d 487, 489 (9th Cir. 1990) (citation omitted).
The court has examined the government's Rule 16(d) submission in connection with the confidential informant, and concludes that disclosure of the informant's identity could lead to testimony or other evidence that would be "of material benefit to the defense." See id. at 489. However, the government has presented evidence that disclosure of the informant's identity could place the informant in danger. Given these safety concerns, any order to disclose the informant's identity would be pursuant to the same timing and protective order as other witnesses for whom the government has safety concerns. To the extent the government argues that the informant should never be identified, it will need to present additional facts to support that position. As there is no trial set in this case, the court continues this issue at this time.
5. Communications Regarding the Timing of Charges Against Defendant
Defendant next moves for disclosure of all communications between the government and any state agencies regarding the timing of the present charges. Defendant contends that the four-year pre-indictment delay violated his constitutional right to due process, and he seeks discovery regarding the circumstances of his indictment to support that claim. The government opposes this request on the grounds that it is barred by Rule 16(a)(2). It also argues that production of such material would violate the attorney work-product privilege and separation of powers principle. Further, the government argues that it charged Defendant for crimes within the applicable five-year statute of limitations so Defendant cannot establish a due process violation.
"Delay between commission of the crime and indictment is generally limited by the statute of limitations, but in some circumstances the Due Process Clause requires dismissal of an indictment brought within the limitations period." United States v. Huntley, 976 F.2d 1287, 1290 (9th Cir. 1992). Courts apply a two-part test to determine whether pre-indictment delay denied due process: "(1) the defendant must prove actual, non-speculative prejudice from the delay; and (2) the length of the delay, when balanced against the reason for the delay, must offend those "'fundamental conceptions of justice which lie at the base of our civil and political institutions.'" Id. (quoting United States v. Sherlock, 962 F.2d 1349, 1353-54 (9th Cir. 1992) (citation omitted)) (internal quotation marks omitted). Here, Defendant seeks discovery related to the reason for the delay, which is the second part of the test. However, Defendant's request is premature because before the court may reach that question it must first determine whether the defendant has sufficiently proved prejudice, a "heavy" burden. See Huntley, 976 F.2d at 1290. As the Ninth Circuit has noted, "protection from lost testimony, as well as other evidence, 'generally falls solely within the ambit of the statute of limitations . . . . [therefore] [t]o establish actual prejudice . . . the defendant must show that the loss of testimony meaningfully has impaired his ability to defend himself." Id. (citations omitted). Moreover, any showing of prejudice must be made to the trial judge, who would be ruling on a motion to dismiss on due process grounds. Accordingly, discovery relevant to the reasons for the delay in prosecution is not warranted at this time. The request is denied.
6. Immediate Compliance With Criminal Local Rule 16-1(c)(3)
Defendant moves for an order requiring immediate compliance with Local Rule 16-1(c)(3), which provides that the government shall provide a summary of any evidence of other crimes, wrongs, or acts which the government intends to offer under Federal Rule of Evidence 404(b), supported by documentary evidence or witness statements in sufficient detail so that the court may rule on the admissibility of the proffered evidence. N.D. Cal. Crim. L.R. 16-1(c)(3). Federal Rule of Evidence 404(b) permits the introduction of such evidence if offered to prove motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident. Fed. R. Evid. 404(b)(2).
The government opposes this request on the grounds that it is premature. It states that it will provide reasonable notice of its intent to use such evidence prior to trial pursuant to Federal Rule of Evidence 404(b)(2) in the form of a motion in limine filed 14 days prior to any final pretrial conference. In addition, the government contends that it has provided Defendant with his criminal RAP sheet and police reports which serve to provide notice of the nature of the evidence the government intends to offer at trial.
The court finds that disclosure of a summary of this evidence at this stage is premature, as the admissibility of such evidence will depend on which specific factual issues are disputed at trial. Therefore, Defendant's request is denied at this time.
7. Immediate Compliance with Criminal Local Rule 16-1(c)(4)
Defendant also moves for an order requiring immediate compliance with Local Rule 16-1(c)(4), which provides that the government must disclose a summary of any co-conspirators' statements which the government intends to offer under Federal Rule of Evidence 801(d)(2)(E) so that the court may rule on the admissibility of the proffered statements. N.D. Cal. Crim. L.R. 16-1(c)(4).
The government makes several arguments in opposition to this request. First, it contends that the request is premature. It also argues that there are significant witness safety concerns and so it should not be compelled to disclose this information at this time. Further, the government asserts that neither Rule 16(a) nor the Jencks Act requires such disclosure, and that the local rule is invalid.
Again, the court finds that disclosure of a summary of co-conspirators' statements is premature, as the court will rule on the admissibility of such evidence closer to trial. Further, in light of witness safety concerns, any such disclosure will take place in accordance with a schedule for disclosure of other witness information. Therefore, Defendant's request is denied at this time.
8. Unredacted Copies of Police Reports
Defendant seeks unredacted copies of all state police reports in the government's possession, custody, or control, including reports documenting the surveillance of the Saklan Road residence and the subsequent raid. The government has produced redacted versions of the reports, but as noted, represents that the only redactions consist of some witness statements in the reports. The government contends that Defendant is not entitled to the unredacted reports for several reasons: it contends the redacted information is entirely inculpatory, not exculpatory; law enforcement reports are not required to be produced as discovery under Rule 16(a), and in fact, are specifically exempt from discovery under Rule 16(a)(2), pursuant to the Ninth Circuit's decision in Fort, 472 F.3d at 1119-20; the reports constitute Jencks Act material for the authoring law enforcement officers and may also constitute such material for the witnesses whose statements are set forth in the reports; disclosure would threaten witness safety; and the request is premature.
As discussed supra, given that the government has represented that the only redacted portions of the police reports consists of Jencks Act material for witnesses for whom safety is a concern, this request is denied. The court will set a schedule for the production of Jencks material at a future date.
9. Deadline for Production of Evidence
Defendant's final request is for an order prohibiting the government from offering into evidence any evidence that he has requested that is in the government's possession, custody, or control, or which could be through the exercise of diligence, should it fail to produce the requested discovery by December 20, 2013, four months after Defendant first requested discovery in this case.
The government represented that all non-Jencks Brady material in its possession would be produced by December 20, 2013. Therefore, the only other evidence in the government's possession, custody, or control at this time is Jencks Act material that will be disclosed prior to trial in accordance with a schedule set by the court. There are no grounds to impose an arbitrary deadline that would preclude the use of any evidence discovered after December 20, 2013. Accordingly, Defendant's request is denied.
IV. Conclusion
Once a trial date has been set in this case, the parties shall meet and confer about the timing of the witness disclosures addressed in this order, as well as the terms of a protective order. Any disputes shall be submitted in conformance with this court's joint discovery letter process.
IT IS SO ORDERED.
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DONNA M. RYU
United States Magistrate Judge