Opinion
No. 2:18-cr-00119-WBS
06-03-2020
UNITED STATES OF AMERICA, Plaintiffs, v. FIRDOS SHEIKH, Defendant.
MEMORANDUM AND ORDER RE: MOTION TO DISMISS INDICTMENT
On June 21, 2018, defendant was indicted and charged with two counts of forced labor under 18 U.S.C. § 1590(a), two counts of harboring for financial gain under 8 U.S.C. §§ 1324(a)(1)(A)(iii) and (a)(1)(B)(i), one count of obstruction of a forced labor investigation under 18 U.S.C. § 1590(b), and one count of false statements under 18 U.S.C. § 1001. (Docket No.1) The charges arise out of allegations that defendant harbored two aliens ("Alfredo" and "Prakash") and forced them to work on her property between 2008 and 2013. Defendant now moves to dismiss the indictment. (Docket No. 95.)
The defendant employed another individual, "Gildardo, during at least some of the same time as Alfredo and Prakash. While the government has not asserted any charges against defendant based on any conduct in connection with Gildardo, Gildardo made several statements to government investigators which are relevant to this motion and the allegations against defendant.
The parties in this case have been before the court several times, including a multi-day evidentiary hearing on a motion to suppress, at which the court heard the testimony of several witnesses. During that hearing, the court raised the issue of whether there was probable cause under Franks v. Delaware, 438 U.S. 154 (1978), for the warrant obtained to search defendant's property on July 9, 2013. The court set a Franks hearing and received briefing from both parties on that issue. Since the hearing on the motion to suppress, including in her briefing on the Franks motion, defendant has repeatedly claimed that the government has either not produced certain exculpatory or impeaching information, or has produced it late, in violation of Brady v. Maryland, 373 U.S. 83 (1963), notwithstanding the court's repeated admonitions to the government to provide all Brady material to the defendant. Defendant now moves to dismiss the indictment based on these alleged Brady violations and also based on the delay caused by such violations. The court held a hearing on the motion on May 26, 2020.
I. Brady Standard
"To establish a Brady violation, a defendant must show that: (1) the evidence at issue is favorable to the accused, either because it is exculpatory or because it is impeaching; (2) the evidence was suppressed by the government, regardless of whether the suppression was willful or inadvertent; and (3) the evidence is material to the guilt or innocence of the defendant." United States v. Sedaghaty, 728 F.3d 885, 899 (9th Cir. 2013) (citing Brady, 373 U.S. at 87). Brady imposes an obligation on the government to provide favorable material evidence not only before trial, but also before pre-trial Franks and suppression hearings. See, e.g., United States v. Barton, 995 F.2d 931, 934-35 (9th Cir. 1993) (Brady applies to Franks hearings); United States v. Gamez-Orduno, 235 F.3d 453, 461 (9th Cir. 2000) (Brady applies to the suppression of "material evidence helpful to the accused, whether at trial or on a motion to suppress").
Evidence is material "if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different." United States v. Bagley, 473 U.S. 667, 682 (1985); see also Gamez-Orduno, 235 F.3d at 461. Brady "encompasses evidence known only to police investigators and not to the prosecutor," and therefore "the individual prosecutor has a duty to learn of any favorable evidence known to the others acting on the government's behalf in [the] case, including the police." Strickler v. Greene, 527 U.S. 263, 280-81 (1999) (citation and internal punctuation omitted).
The Supreme Court has explained that "the term 'Brady violation' is sometimes used to refer to any breach of the broad obligation to disclose exculpatory or impeaching evidence," though "strictly speaking, there is never a real 'Brady violation' unless the nondisclosure was so serious that there is a reasonable probability that the suppressed evidence would have produced a different verdict" or outcome in the proceedings. See Strickler, 527 U.S. at 281.
A. Brady Material
Here, the key inquiry is whether the evidence allegedly withheld by the government would be helpful to defendant at the Franks hearing. Thus, the question is whether the withheld evidence would help defendant show that (1) the government intentionally or recklessly made false or misleading statements or omissions in its warrant application or (2) these false or misleading statements or omissions were necessary to finding probable cause. See United States v. Perkins, 850 F.3d 1109, 1116 (9th Cir. 2017) (citations omitted). If defendant proves both factors, the search warrant must be voided and the fruits of the July 9, 2013 search must be excluded. Id.
Although the court discusses this evidence in the context of defendant's Franks motion, it may also be useful for the defendant at trial or in support of her other pretrial motions.
Probable cause exists where there is a fair probability that a search will result in evidence of a crime being discovered. Illinois v. Gates, 462 U.S. 213, 238 (1983). Because the Franks inquiry looks to what the affiant knew at the time of the warrant application, any information regarding what the agent knew at that time, specifically information that would call into doubt the representations regarding forced labor in the affidavit, is potentially Brady material.
The forced labor statute, 18 U.S.C. § 1589, punishes, among other things, knowingly obtaining the labor of a person "by means of force, threats of force, physical restraint, or threats of physical restraint to that person"; "by means of serious harm or threats of serious harm to that person"; or "by means of the abuse or threatened abuse of law or legal process." The warrant application also references 18 U.S.C. § 1584, which punishes anyone who "knowingly and willfully holds [any person] to involuntary servitude or sells into any condition of involuntary servitude," although the indictment contains no charge under § 1584.
The warrant application only sought a warrant based on allegations of forced labor and involuntary servitude in violation of 18 U.S.C. § 1584 and 1589. As a result, on the Franks motion, it appears that the government may not claim that probable cause existed for the harboring, obstruction, or false statement crimes that were also charged in the indictment but were not mentioned in the warrant application.
Here, the government's affidavit in support of the warrant application portrays a starkly different picture than that shown at the hearing on the motion to suppress and as portrayed by the evidence withheld by the government. (See Docket No. 43-1.) In the affidavit, the government agent represents that, among other things, (1) defendant held individuals in a condition of forced labor and involuntary servitude by, among other things, means of force, threats of force, physical restraint, threats of physical restraint, means of serious harm, and threats of serious harm (id. ¶ 3); (2) people who engage in forced labor frequently control their workers' freedom by installing chains and locks on doors and gates so the workers are not able to leave freely, and defendant's property was "fenced and had a large gate and two pedestrian gates that were locked with chains and padlocks" (id. ¶¶ 7, 11); (3) the victims were afraid to leave (id. ¶ 10); (4) the victims were malnourished and hungry (id. ¶¶ 14-16); (5) the victims had to work 10-12 hours a day, seven days a week, even when sick or when it was very hot (id. ¶ 15); (6) defendant called one victim a foreign word for slave (id. ¶ 15); (7) if employees wanted to leave the property, they had to ask her for the key to unlock the gate, which was closed and locked (id. ¶¶ 16-17); (8) the same victim "considered leaving but didn't have the means of contacting anyone outside the property and he wouldn't know who to call even if had [sic] the ability to do so" (id. ¶ 16); (9) at least one witness "didn't feel he could leave at will" because of the locked gate and the fact that the defendant took away the key (id.); and (10) defendant "threatened to cut off" one of the victim's hands "because he was stealing so much" (id.).
The court recognizes that other allegations in the warrant affidavit discuss potential immigration and financial harm, which could potentially support violation of the forced labor statute, 18 U.S.C. § 1589, even if physical force, physical restraint, or physical harm, or threats of physical force, physical restraint, or physical harm were not used. See United States v. Dann, 652 F.3d 1160, 1171-72 (9th Cir. 2011). The court expresses no opinion as to whether there was in fact probable cause under Franks without the warrant application's allegations of physical force, restraint, or harm, or threats of physical force, restrain, or harm.
Overall, allegations of physical force, restraint, and harm and threats of physical force, restraint, and harm play a key role, if not the main role, in the warrant application. These allegations are refuted in substantial part by the following evidence that should have been disclosed to the defendant before the scheduled Franks hearing:
(1) On July 2, 2013, Alfredo informed agents that he told defendant he was going to leave a week prior to actually leaving and she said it was "ok". (Mot. Ex. DDD at 11528 (Docket No. 95-17).) This statement tends to negate the government's claim that the victims were being held at defendant's property against their will. The government concedes that this is Brady material that should have been disclosed earlier.
(2) On June 26, 2013, another worker at defendant's home, Gildardo, told agents that defendant was not present at the ranch six days a week from 9 a.m. to 3 a.m. (Mot. Ex. EEE at 11545 (Docket No. 95-18).) This statement undercuts the representation that the victims could not leave -- if the defendant was at the property only six hours a day, there would be ample opportunity to escape. Such statement is material notwithstanding other evidence previously disclosed that the defendant would come home late, after midnight or between 11:00 p.m. and 1:00 a.m., as this time frame provides an even greater opportunity for the victims to escape.
(3) On June 26, 2013, Gildardo informed agents that Alfredo and Prakash would work from 7:30 a.m. to 3:30 p.m. (Mot. Ex. EEE at 11540 (Docket No. 95-18).) This statement undercuts the government's claims that defendant forced the victims to work 10, 12, or even 14 hours a day.
(4) The fact that notwithstanding its locked gate, the ranch was easy to physically escape given the low height and modest structure of the fence, which counters the warrant application's portrayal of the property as a locked-down compound from which escape was difficult;
(5) The fact that there was a strip mall with inexpensive restaurants and a convenience store within a mile of the property and other places within three miles, which undercuts the warrant application's insinuation that the victims had no place to go and were being starved.
The court notes that there is no dispute that the victims were paid hundreds of dollars for their work, so there can be no inference that they would be unable to buy food at that store or those restaurants. (See Docket No. 43-1 at ¶¶ 15-16.)
(6) On July 1, 2013, Prakash informed agents that he had a friend living nearby in the Fruitridge area of Sacramento, (Mot. Ex. FFF at 11549 (Docket No. 95-19), and that Alfredo had a friend with a local phone number (Mot. Ex. PPP (Docket No. 95-29)). These disclosures both undermine the warrant application's claims that the victims had no one to contact and no place to go.
All of this information was known to government agents, or they should have known it, at the time of the warrant application. All of this information, or the agents' knowledge of this information, was not properly disclosed to defendant prior to the scheduled Franks hearing. And all of this evidence would be helpful to the defendant at the Franks hearing because it tends to show that the government agent intentionally or recklessly made false or misleading statements or omissions in its warrant application. See Perkins, 850 F.3d at 1116. Accordingly, this evidence is material under Brady. Simply put, the government should have disclosed this information to the defendant, and the court strongly rejects the government's arguments to the contrary.
The fact that the defendant already knew some of this information, such as the fact that the victims could easily climb over the fence or that there were cheap eateries within a mile of defendant's property, does not completely negate its materiality under Brady because on a Franks motion, the issue is what the government knew or should have known at the time of the warrant application. See Perkins, 850 F.3d at 1116.
B. Prejudice/Remedy
The court now turns to the prejudice to the defendant from the late disclosures and the appropriate remedy. The court may dismiss an indictment based on Brady violations where prejudice to the defendants results and the prosecutor's conduct was flagrant. United States v. Struckman, 611 F.3d 560, 574-77 (9th Cir. 2010); United States v. Chapman, 524 F.3d 1073, 1085 (9th Cir. 2008); see also United States v. Kojayan, 8 F.3d 1315 (9th Cir. 1993). However, dismissal is a drastic remedy that should not be used if lesser remedies sufficiently cure any prejudice to the defendant. See, e.g., Struckman, 611 F.3d at 577; United States v. Garrison, 888 F.3d 1057, 1965 (9th Cir. 2018) ("Because dismissing an indictment is a drastic step, it is disfavored.") (citing Struckman, 611 F.3d at 577) (internal punctuation omitted). The appropriate remedy for a Brady violation "will usually be a new trial." Chapman, 524 F.3d at 1086. "[A]ccidental or merely negligent government conduct is insufficient to establish flagrant misbehavior. Id. at 1085.
The Ninth Circuit has explained that Brady "does not necessarily require that the prosecution turn over exculpatory material before trial," so long as disclosure is "made at a time when disclosure would be of value to the accused." United States v. Gordon, 844 F.2d 1397, 1403 (9th Cir. 1988). In Gordon, the government disclosed certain documents to the defendants during trial at the close of the government's case in chief after having represented before trial that all Brady material had been produced. The trial court gave the defendants the option of recalling certain witnesses to reexamine them about those documents, though the defendants instead simply introduced the previously withheld documents as defense exhibits. The Ninth Circuit explained that because the defendants "had substantial opportunity to use the documents and to cure any prejudice caused by the delayed disclosure," "even assuming the documents were exculpatory and material, there was no due process violation under Brady." Id.; see also United States v. Aichele, 941 F.2d 761, 764 (9th Cir. 1991) (government disclosure regarding certain witness made during 3-week break in trial gave the defendant "ample opportunity to prepare" his in-court examination of that witness).
The Ninth Circuit further explored whether disclosure was at a time when it would be of value to the accused in United States v. Gamez-Orduno, 235 F.3d at 461-62. In Gamez-Orduno, the government failed to disclose a certain report that tended to disprove the government's theory on a motion to suppress. The trial court held, and the Ninth Circuit agreed, that by withholding the report, while making factual representations inconsistent with it, the government violated the defendants' due process rights. However, the Ninth Circuit agreed that the trial court's two-month continuance, as a result of this belated disclosure, gave the defendants "ample time to prepare anew for the suppression hearing" such that "the government's actions could not have affected the outcome of the hearing, and appellants' due process rights were adequately protected." Id. (citations omitted).
Chapman and Kojayan, which defendant has relied on extensively in his briefing and on oral argument, are distinguishable from this case. Notably, both cases involved disclosures made during or after trial, when the prejudice to the parties (and the court) caused by delay or retrial is greater. Indeed, defendant cites only one case where a Brady violation before trial led to dismissal -- an unpublished decision, not available on Westlaw or Lexis, from the D.C. Superior Court. (See Mot. 28 (citing United States v. Green, Crim. No. 2004 FEL 6457, Memorandum and Order (Nov. 14, 2008).) Here, the court has not set a trial date and the court's recollection is that defendant has never requested one.
The facts of Chapman and Kojayan are also more egregious than those here. In Chapman, defendants repeatedly objected during trial that the government had failed to disclose information about multiple witnesses' convictions. Three weeks into trial, after asserting it had produced all such information, the government admitted that it had no record of disclosing it and then produced 650 pages of documents consisting of rap sheets, plea agreements, cooperation agreements, and other information related to several government witnesses, including several who had already testified and had been released. 524 F.3d at 1078-79. The Ninth Circuit affirmed the dismissal of the indictment. In doing so, the court noted that the prosecutor repeatedly represented to the court that he had fully complied with Brady and "when he knew full well that he could not verify these claims" due to the failure to keep a log indicating what materials were disclosed, and it was "[o]nly when the court insisted on proof of disclosure did the AUSA acknowledge that no record of compliance even existed." Id. at 1085.
Notably, defense counsel has focused on the prejudice to him of having to reveal his cross-examination strategy, the increased legal expenses incurred by the defendant due to continued proceedings and additional motions practice, and delay. These are not factors typically discussed by courts in the context of Brady motions, and inherently arise any time proceedings are continued or a case is retried, which are the normal remedies for Brady violations.
Kojayan also involved the prosecutor's knowing or reckless false statements at trial. In Kojayan, 8 F.3d 1315, a federal prosecutor falsely told a jury in rebuttal that he could not have called a co-conspirator as a witness because that witness would invoke his Fifth Amendment right to remain silent, when (1) the government had entered into a cooperation agreement with the witness that obligated him to testify and (2) prior to trial, the government had refused to disclose to the defense its agreements with that witness. Id. at 1317-18. The court noted the prosecutor's failure to correct the misstatement despite multiple opportunities to do so, and his explicit impugning of defense counsel, as well as the fact that the government failed to acknowledge there was in fact a cooperation agreement until oral argument on appeal. Id. at 1318-23. As a result, the court reversed the defendant's convictions.
Notwithstanding the prosecution's misbehavior, the Kojayan court did not remand with instructions to dismiss the indictment, but left it to the district court to determine whether to retry the defendants or to dismiss. Id. at 1325.
Here, the material that was withheld was disclosed well in advance of trial, the government attorneys do not appear to have intentionally or recklessly made any false or misleading statements to the court, and the material that was disclosed was not as obviously Brady material as a witness's criminal record or cooperation agreement. Further, the court has postponed the Franks hearing and has expressed its willingness to reopen proceedings on the pretrial motions it has already decided, addressing much of the prejudice caused by the late disclosure.
Under these circumstances, the government's belated disclosures were made at a time when the materials are still of value to the accused, see Gordon, 844 F.2d at 1403, and the drastic remedy of dismissal of the indictment is inappropriate. Accordingly, the court will deny the motion to dismiss based on Brady.
Similarly, the court declines defendant's alternative remedy of suppressing all statements and evidence gathered on July 1, 2013 (resulting from the welfare check) and July 9, 2013 (resulting from the search of defendant's property), given the lesser remedies provided by the court.
III. Sixth Amendment Speedy Trial Right
The court will also deny defendant's motion to dismiss the indictment under her Sixth Amendment right to a speedy trial. In determining whether a defendant's constitutional speedy trial rights have been violated, the court looks at (1) the length of the delay; (2) the reason for the delay; (3) the defendant's assertion of the right to a speedy trial, and (4) the prejudice to the defendant. Barker v. Wingo, 407 U.S. 514, 530 (1972); United States v. Mendoza, 530 F.3d 758, 762 (9th Cir. 2008). These factors are related and must be considered together, as none of them are either necessary or sufficient individually to prove a violation of the Sixth Amendment's speedy trial right. Mendoza, 530 F.3d at 762 (citing Barker, 407 U.S. at 533).
Notably, defendant does not claim a violation of the Speedy Trial Act, 18 U.S.C. §§ 3161-3174. The Ninth Circuit has explained that "it will be an unusual case in which the time limits of the Speedy Trial Act have been met but the sixth amendment right to speedy trial has been violated." United States v. Nance, 666 F.2d 353, 360 (9th Cir. 1982).
Here, while almost two years have passed since defendant was indicted, defendant is responsible for much of the delay based on her four requests to continue, two substitutions of counsel, and filing of several pre-trial motions. At the same time, the government caused some of the delay through its late disclosure of Brady material, which required the postponement of the Franks hearing and at least in part led to the delay caused by the motion to dismiss. However, the record "does not disclose any 'deliberate attempt to delay the trial in order to hamper the defense'." See United States v Drake, 543 F.3d 1080, 1085-86 (9th Cir. 2008) (quoting Barker, 407 U.S. at 531).
Looking at the other Barker factors, defendant did not assert her speedy trial right until the instant motion. See Mendoza, 530 F.3d at 764 (defendant's failure to assert right to speedy trial until after making numerous requests for continuances, delaying trial by over a year, was factor weighing against finding a speedy trial violation). Defendant also has not shown prejudice beyond that experienced by most criminal defendants being prosecuted. Id. at 764-65 (if government shows reasonable diligence in bringing a defendant to trial, defendant must show specific prejudice to his defense caused by delay); Drake, 543 F.3d at 1086 (noting that while the defendant had suffered anxiety and concern, there was no showing that the delay impaired his defense, as "[n]o witnesses died or disappeared; nothing in the record demonstrates that evidence shown to be helpful to the defense was lost"). Under these circumstances, the delay caused by the government's belated disclosure of Brady material did not violate defendant's Sixth Amendment right to a speedy trial.
IT IS THEREFORE ORDERED that defendant's motion to dismiss the indictment (Docket No. 95) be, and the same hereby is, DENIED.
Counsel shall work with the Clerk to set up a schedule for briefing and the hearing of defendant's Franks motion. Dated: June 3, 2020
/s/_________
WILLIAM B. SHUBB
UNITED STATES DISTRICT JUDGE