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In Wilson, the defendants had been charged with drug trafficking and murder while engaged in a narcotics conspiracy, among other crimes.
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1:19-CR-00155 EAW
2021-02-10
UNITED STATES of America, v. Deandre WILSON a/k/a D, Defendant.
Brendan T. Cullinane, U.S. Attorney's Office, Buffalo, NY, for United States of America.
Brendan T. Cullinane, U.S. Attorney's Office, Buffalo, NY, for United States of America.
DECISION AND ORDER
ELIZABETH A. WOLFORD, United States District Judge
INTRODUCTION
Defendant Deandre Wilson a/k/a D ("Wilson") stands accused by way of a Second Superseding Indictment ("SSI") returned on August 26, 2020, with among other crimes, murder while engaged in a narcotics conspiracy in violation of 21 U.S.C. § 848(e)(1)(A) and 18 U.S.C. § 2 (Count 10), and discharge of a firearm causing death in furtherance of a crime of violence and drug trafficking crimes in violation of 18 U.S.C. §§ 924(c)(1)(A)(iii), 924(j)(1), and 2 (Counts 12 and 13), related to the alleged intentional killing of Miguel Anthony Valentin-Colon, Nicole Marie Merced-Plaud, and Dhamyl Roman-Audiffred, on or about September 15, 2019. (Dkt. 106). Based on these counts, the SSI contains special findings pursuant to 18 U.S.C. §§ 3591 and 3592 with respect to a potential sentence of death. (Id. at 18-20). Pending before the Court is a motion filed by Wilson asking that the Court set a case management schedule with respect to a meeting with the Capital Review Committee of the Department of Justice ("DOJ") and further order the government to produce "pre-authorization" discovery. (Dkt. 170). The Court previously issued a Text Order granting some of the requested relief, denying some of the requested relief, and otherwise reserving decision. (Dkt. 178). This Decision and Order now addresses the motion in further detail, and for the reasons outlined herein, the motion is granted in part and denied in part.
Co-defendant Jariel Cobb a/k/a Doobie a/k/a Black is similarly named in these counts and the grand jury has also returned special findings with respect to him.
BACKGROUND
Wilson filed the pending motion on December 21, 2020. (Dkt. 170). As outlined in that motion, the government initially proposed that Wilson's counsel meet with the DOJ Capital Review Committee in November or December 2020, and Wilson's counsel responded by requesting a ten-to-twelve month period "to allow us to learn, research, and investigate our case, including the critical mitigation investigation." (Id. at 3). The government responded by scheduling the meeting for January 25, 2021. (Id. ). Wilson's counsel contends that this schedule is not practical for them to effectively investigate and prepare "an informed proffer to the Government in order to persuade it not to seek [their client's] execution." (Id. at 4). As a result, Wilson seeks the Court's intervention to set a "case management schedule that would allow the defense to attend the conference with the Committee in July, 2021 or later." (Id. at 11). The government opposes Wilson's request essentially on the basis that it is beyond this Court's authority to intervene in the scheduling of this meeting with the DOJ. (Dkt. 172 at 4-10).
In addition to seeking the Court's intervention with respect to the DOJ meeting, Wilson also seeks an order from the Court requiring that the government produce "pre-authorization" discovery. (Dkt. 170 at 11-20). Wilson describes the information sought as relevant to mitigating circumstances in connection with any decision in this case regarding the death penalty, and specifically seeks the following:
(1) criminal history and background information concerning the victims (Miguel Anthony Valentin-Colon, Nicole Marie Merced-Plaud and Dhamyl Roman-Audiffred), including whether they were associated with any drug organizations and any investigatory information concerning any such organization;
(2) the identity of witnesses, including cooperating witnesses and any witness who has implicated Wilson in the murders, and their criminal history and other background information;
(3) information concerning any equally culpable individuals;
(4) information in the government's possession, custody or control that "might be favorable, or mitigating, on the issue of whether the death penalty should be sought or imposed"; and,
(5) statements of any alleged co-conspirators.
(Id. at 17-20; Dkt. 177 at 4-5). Wilson's counsel seeks the information on the basis that it is "highly relevant to our ability to make meaningful arguments to the [DOJ Capital Review Committee] against the death penalty and is therefore far from ‘premature.’ " (Dkt. 170 at 12).
As with the request for the Court's intervention concerning the scheduling of the DOJ meeting, the government also opposed Wilson's request for pre-authorization discovery. (Dkt. 172 at 10-18). Oral argument was held before the undersigned on January 11, 2021. (Dkt. 174). Based on questions raised during that oral argument concerning pre-authorization discovery, the Court permitted the government to submit supplemental briefing (Dkt. 176) to which Wilson responded (Dkt. 177). Thereafter, the Court issued its Text Order on January 20, 2021, granting some of the relief requested by Wilson, denying some of the relief, and otherwise reserving decision. (Dkt. 178).
REQUEST FOR COURT TO REGULATE TIMING OF DOJ MEETING
As the Court suggested during the oral argument of this matter (Dkt. 175 at 15-18), and as confirmed by the Court's Text Order (Dkt. 178), the government's insistence on moving forward with the current schedule of the DOJ meeting does not represent an efficient use of time and resources given the change in administration of the executive branch. However, the Court also does not believe it is an appropriate exercise of judicial authority to become involved in the scheduling of a meeting that will impact a charging decision by the government. This conclusion is consistent with the vast majority of courts that have addressed the issue. See , e.g. , United States v. Crusius , EP-20-CR-00389-DCG, 2020 WL 4340550, at *4 (W.D. Tex. July 28, 2020) (while recognizing the challenges in preparing mitigation evidence in the face of COVID-19 pandemic, nonetheless concluding that the court lacked "the authority to grant Defendant the relief he seeks because the pre-authorization mitigation presentation is not a judicial proceeding presided over by a judge, but part of an ‘administrative, discretionary decision-making process of whether to seek the death penalty’ "); United States v. Slone , 969 F. Supp. 2d 830, 833 (E.D. Ky. 2013) (denying motion to set schedule for presentation of mitigating evidence to federal prosecutors because "[t]he Court does not have the authority to manage the DOJ's internal processes"); United States v. Tsarnaev , Criminal Action No. 13-10200-GAO, 2013 WL 5701582, at *1 (D. Mass. Oct. 18, 2013) ("The opportunity extended by the protocol to the defendant to submit information and materials for consideration in the Department's internal deliberations does not create a legal right that can be overseen and enforced by the Court."); United States v. Hardrick , Criminal Action No. 10-202, 2011 WL 2516340, at *2 (E.D. La. June 22, 2011) (concluding that court lacked authority to order DOJ to extend deadline set for defense presentation of evidence to the Capital Case Review Committee); United States v. Cisneros , Criminal No. 01-1709 MCA, 2002 WL 35649521, at *1 (D.N.M. Dec. 10, 2002) (declining to intervene in deadlines set by government with respect to death penalty review because "the death-eligible Defendants lack any judicially enforceable substantive or procedural rights with respect [to] the Government's exercise of prosecutorial discretion under the Justice Department's internal death-penalty protocol").
In support of his motion, Wilson relies on the decision in United States v. McGill , No. 09CR2856-IEG, 2010 WL 1571200 (S.D. Cal. Apr. 16, 2010) where the court granted, in part, the defendant's motion for a scheduling order pertaining to the government's consideration of whether to pursue the death penalty. The Court has reviewed and considered that decision, but respectfully disagrees with its conclusion. Accordingly, Wilson's motion for the issuance of a case management order regulating the timing of the meeting with the DOJ Capital Review Committee is denied.
REQUEST FOR "PRE-AUTHORIZATION" DISCOVERY
In support of his request for "pre-authorization" discovery to help assist with the presentation of mitigation evidence to the DOJ Capital Review Committee, Wilson relies on Brady v. Maryland , 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) and its progeny, which of course stand for the principle that the prosecutor's suppression of "evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution." 373 U.S. at 87, 83 S.Ct. 1194. The protections afforded by Brady are aimed at affording a defendant a fair trial. United States v. Bagley , 473 U.S. 667, 678, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985) ("suppression of evidence amounts to a constitutional violation only if it deprives the defendant of a fair trial"); United States v. Agurs , 427 U.S. 97, 108, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976) ("the prosecutor will not have violated his constitutional duty of disclosure unless his omission is of sufficient significance to result in the denial of the defendant's right to a fair trial").
"Pre-authorization discovery" has been defined to include "discovery that will assist the defendants in convincing the United States Attorney ... and the Attorney General ... not to authorize the Government to seek the death penalty against them." United States v. Delatorre , 438 F. Supp. 2d 892, 899 (N.D. Ill. 2006). By definition, it is related to material relevant to the government's charging decision—a non-adjudicative phase of the case—as opposed to any discovery relevant to judicial proceedings. See Cisneros , 2002 WL 35649521, at *4 (The " ‘death penalty statute gives the prosecutorial discretion to the United States Attorney,’ and ‘[b]y definition a prosecutorial decision is not adjudicative in nature.’ " (quoting Nichols v. Reno , 931 F. Supp. 748, 752 (D. Colo. 1996) (alteration in original)).
"Because Brady and its progeny are grounded in the Due Process Clauses of the Constitution, the essential purpose of the rules enunciated in these cases is to protect a defendant's right to a fair trial by ensuring the reliability of any criminal verdict against him." United States v. Coppa , 267 F.3d 132, 139 (2d Cir. 2001). Indeed, "evidence is material in the Brady context only if ‘its suppression undermines confidence in the outcome of the trial.’ " Id. at 141 (citation omitted). As a result, the Second Circuit has "never interpreted due process of law as requiring more than that Brady material must be disclosed in time for its effective use at trial." Id. at 142 ; see United States v. Rodriguez , 496 F.3d 221, 226 (2d Cir. 2007) (" Brady information must be disclosed ... in a manner that gives the defendant a reasonable opportunity either to use the evidence in the trial or to use the information to obtain evidence for use in the trial.").
The Due Process Protections Act, Pub. L. 116-182, 134 Stat. 894 (Oct. 21, 2020), which amended Rule 5 of the Federal Rules of Criminal Procedure to require confirmation through an oral and written order at the first scheduled court date of the government's Brady obligations, did not change the substance of those obligations and Wilson has not argued otherwise.
In attempting to link the government's Brady obligations to the DOJ meeting, Wilson tries to infuse that meeting with fundamental due process protections that attach to a trial. But that meeting, conducted pursuant to the Death Penalty Protocol set forth in the United States Attorney's Manual ("USAM"), does not create substantive or procedural rights for a defendant. In other words, the Court disagrees that Wilson's due process rights as recognized in Brady and its progeny attach to that meeting which is related to the government's charging decision. As the court explained in United States v. McVeigh , 944 F. Supp. 1478 (D. Colo. 1996) :
the decision to seek the death penalty under the Act is a matter of prosecutorial discretion. The Protocol did not create any individual right or entitlement subject to the due process protections applicable to an adjudicative or quasi-adjudicative governmental action. The Act expressly provides that the attorney for the government shall file and serve the death penalty notice if he believes that the "circumstances of the offense" are such that a sentence of death is justified. [ 18 U.S.C.] § 3593(a). There is no requirement that the prosecutor consider any other matters, including any mitigating factors concerning the offense or the character and circumstances of a particular defendant. The decision of a jury whether to recommend a sentence of death is made only after a full hearing and consideration of aggravating and mitigating factors provided by information submitted pursuant to the adversary process. [ Id. ] § 3593(b) - (e). The constitutional protections of the life and liberty of a defendant are provided by the sentencing hearing following trial of the charges in the indictment. The issuance of these notices is essentially a prosecutor's charging decision.
Id. at 1483-84 ; see also United States v. Lee , 274 F.3d 485, 493 (8th Cir. 2001) ("[T]he death penalty protocol is unenforceable by individuals."); In re U.S. , 197 F.3d 310, 315-16 (8th Cir. 1999) ("Courts that have addressed directly whether the death penalty protocol described in the Manual creates any substantive or procedural rights enforceable by a defendant have held almost uniformly that it does not." (collecting cases)); United States v. Hay , No. 1:19-CR-00170-RJA-MJR, 2020 WL 7706602, at *3 (W.D.N.Y. Dec. 29, 2020) ("Although the agency protocol affords defendants an opportunity to present mitigating evidence to the Committee for its consideration, the internal policies and procedures of the Justice Department manual ‘[do] not create substantive or procedural rights’ for defendants." (alteration in original) (citation omitted)); United States v. Pray , 764 F. Supp. 2d 184, 188 (D.D.C. 2011) (The Death Penalty Protocol in the USAM "does not create substantive or procedural rights for a defendant."); Hardrick , 2011 WL 2516340, at *2 (DOJ internal procedure related to Capital Case Review Committee "does not provide the defendant with any constitutionally protected substantive or procedural rights."); United States v. Shakir , 113 F. Supp. 2d 1182, 1187 (M.D. Tenn. 2000) ("[T]he Court finds that the Protocol does not create any enforceable substantive or procedural rights in the defendants, and that the DOJ's interpretation of its internal policy, prohibiting the disclosure of pre-authorization discovery, is a matter of prosecutorial discretion which is presumptively unreviewable by this Court."); United States v. Feliciano , 998 F. Supp. 166, 169 (D. Conn. 1998) ("[T]he Protocol ‘does not create substantive or procedural rights.’ Rather, ‘[t]he protocol articulates internal administrative procedures to be followed by DOJ personnel....’ It ‘provides for "standards for determination" to guide the death penalty decision making process.’ " (citations omitted)).
The Court acknowledges that the case law addressing a defendant's right to pre-authorization discovery has not always been consistent on this point. See Delatorre , 438 F. Supp. 2d at 900 & n.7 (collecting cases where district courts have allowed and not allowed discovery before government makes final decision concerning death penalty). Some courts have required pre-authorization discovery under the auspices of Brady . See , e.g. , United States v. Ortiz , No. CR 12-0119 SI (LB), 2012 WL 5379512, at *4 (N.D. Cal. Oct. 31, 2012) ("a district court may order accelerated discovery of Brady information—when appropriate based on the facts of the specific case—in a capital case to aid in the defense's presentation of its case before the capital case committee"); Delatorre , 438 F. Supp. 2d at 900-01 (ordering production of certain materials sought by defense in advance of review by DOJ, indicating that the court agrees that pre-authorization discovery is required pursuant to the government's obligations under Brady ); United States v. Jackson , No. 02 CR. 756 (LMM), 2003 WL 22023972, at *3 (S.D.N.Y. Aug. 27, 2003) (requiring disclosure of 911 tapes as Brady information to be "produced in time to be used in defense counsels’ argumentation against pursuit of the death penalty to both the United States Attorney and the Department of Justice"); cf. Feliciano , 998 F. Supp. at 169-71 (requiring disclosure of evidence sought by defense as within the scope of Brady consistent with District's Standing Order that required disclosure of such information within 10 days of arraignment in all criminal cases). But "[e]ven though some courts have ordered pre-authorization disclosure, the Court agrees that Brady disclosure is a trial right." Pray , 764 F. Supp. 2d at 189 ; see also United States v. Tsarnaev , No. 13-10200-GAO, 2013 WL 6196279, at *1 (D. Mass. Nov. 27, 2013) (concluding that Brady is a trial right, and thus the information "need only be disclosed ‘in adequate time for the information to be used effectively by the defense at trial’ " (citation omitted)); United States v. Cureton , DOCKET NO. 3:14-cr-00229-MOC, 2016 WL 755648, at *2 (W.D.N.C. Feb. 25, 2016) ("[I]t is clear that defendant has no constitutional right to exculpatory material in connection with, or in time for, its effective use during the DOJ's internal death penalty authorization process." (quoting United States v. Lee , 306 F. Supp.2d 589, 592 (E.D. Va. 2004) ). Thus, the Court does not find persuasive Wilson's argument that the discovery he seeks to prepare for the DOJ meeting is compelled by Brady and its progeny.
Other courts, while not expressly holding that Brady compels pre-authorization discovery, have ordered such disclosure based on a court's inherent authority. See , e.g. , United States v. Smallwood , No. 5:08-CR-00038-R, 2009 WL 1734139, at *1-2 (W.D. Ky. June 18, 2009) (although Brady may not mandate the disclosure of exculpatory evidence as part of pre-authorization discovery, concluding in the interests of justice to require its disclosure "in time for effective use in her arguments to the United States Attorney and the Capital Review Committee").
On the other hand, Rule 16 sets forth certain discovery obligations that are not tied expressly to the trial or a defendant's constitutional rights. Rule 16(a)(1)(E)(i) provides that upon request, the government must permit a defendant to inspect and copy "books, papers, documents, data, photographs, tangible objects, buildings or places" that are within the government's "possession, custody or control" and "material to preparing the defense." The Rule does not permit the discovery or inspection of "reports, memoranda, or other internal government documents made by an attorney for the government or other government agent in connection with investigating or prosecuting the case." Fed. R. Crim. P. 16(a)(2). The Rule also does not authorize the discovery of witness statements except as otherwise required by the Jencks Act, 18 U.S.C. § 3500. Id. And the Rule does not generally authorize the disclosure of grand jury transcripts. Id. 16(a)(3).
Wilson's initial motion papers did not focus on Rule 16, and instead sought the requested disclosure pursuant to Brady and the Court's inherent authority. (Dkt. 170 at 11-20). The Court raised the issue of Rule 16 with the government at oral argument, and thus permitted supplemental briefing on the issue. (Dkt. 176; Dkt. 177).
Evidence is material within the meaning of Rule 16 "if it could be used to counter the government's case or to bolster a defense...." United States v. Stevens , 985 F.2d 1175, 1180 (2d Cir. 1993). The "burden is not on the Government to show what is material and discoverable under Rule 16...." United States v. Jenkins , No. 1:15-CR-00142 EAW, 2017 WL 3283859, at *4 (W.D.N.Y. Aug. 2, 2017). Rather, "[t]o obtain discovery under Rule 16, a defendant must make a prima facie showing of materiality." United States v. Clarke , 979 F.3d 82, 97 (2d Cir. 2020) ; see United States v. Urena , 989 F. Supp. 2d 253, 261 (S.D.N.Y. 2013) ("The defendant must make a prima facie showing of materiality, and must offer more than the conclusory allegation that the requested evidence is material." (citations and quotation omitted)); see also United States v. Maniktala , 934 F.2d 25, 28 (2d Cir. 1991) (stating, in appeal alleging breach of Rule 16, that "[t]o prevail, ... [the defendant] must demonstrate that the [documents] are material to the preparation of his defense"). The "materiality standard [of Rule 16 ] normally is not a heavy burden; rather, evidence is material as long as there is a strong indication that it will play an important role in uncovering admissible evidence, aiding witness preparation, corroborating testimony, or assisting impeachment or rebuttal." United States v. Stein , 488 F. Supp. 2d 350, 356-57 (S.D.N.Y. 2007) (citation omitted). On the other hand, materiality under Rule 16 is not the same as "useful." United States v. Rigas , 258 F. Supp. 2d 299, 307 (S.D.N.Y. 2003). "Materiality means more than that the evidence in question bears some abstract logical relationship to the issues in the case." Maniktala , 934 F.2d at 28 (quoting United States v. Ross , 511 F.2d 757, 762-63 (5th Cir. 1975) ).
In the context of a potential capital case, it has been recognized that materiality within the meaning of Rule 16 includes evidence relevant to a statutory mitigating factor. See Tsarnaev , 2013 WL 6196279, at *4 ("in the context of a death-eligible case, discovery under Rule 16(a)(1)(e)(i) includes information material to defense preparation for the penalty phase"); cf. Feliciano , 998 F. Supp. at 170 ("In order to be entitled to discovery of this information, ‘defendants need only establish a "substantial basis for claiming" that a mitigating factor will apply at the penalty phase, in order to invoke the Government's obligation under Brady and its progeny to produce any evidence which is material to that mitigating factor.’ " (citation omitted)). Statutory mitigating factors include evidence that "[a]nother defendant or defendants, equally culpable in the crime, will not be punished by death," 18 U.S.C. § 3592(a)(4), and that "[t]he victim consented to the criminal conduct that resulted in the victim's death," id. § 3592(a)(7) ; see also USAM § 9-10.140 D(5) (whether the victim engaged in criminal activity that was a relevant circumstance of the offense is pertinent to death penalty decision). In its supplemental briefing, the government advanced certain general arguments concerning the applicability of Rule 16 and the timing for any such disclosure, but the Court is not persuaded that materiality under Rule 16 in the context of a potential capital case does not extend to a defendant's efforts to convince the DOJ not to pursue the death penalty. Unlike Brady , Rule 16 is not expressly tied to a defendant's due process trial rights. This does not mean that a defendant does not need to meet his burden to make a prima facie showing of materiality under Rule 16 nor does it mean that Rule 16 is expanded beyond its limited scope. But the Court concludes that Rule 16 may apply at this stage of the prosecution to mitigating factors with respect to a potential death sentence. Moreover, even if Rule 16 does not extend in this manner in the context of this case, as even the government acknowledges the Court ultimately has the "inherent authority to regulate the nature and timing of discovery in criminal cases" (Dkt. 176 at 8-9) and it exercises that authority here.
As noted, the district court in Tsarnaev concluded that Rule 16(a)(1)(E)(i) includes information material to defense preparation for the penalty phase. The court ultimately concluded that the defendant's "general assertions" failed to make a prima facie showing of materiality for the requested discovery, and the court did not specifically reach the issue of whether Rule 16 applied to information that would help prepare the defendant's mitigation case to the DOJ (as opposed to at trial). 2013 WL 6196279, at *4-5. In United States v. George , No. CR 17-201, 2019 WL 4982324 (E.D. La. Oct. 8, 2019), the district court noted in a footnote that it was not aware of any other case that followed Tsarnaev ’s conclusion that Rule 16(a)(1)(E)(i) applied to the penalty phase of a capital case. Id. at *5 n.45. That may be true, but this Court is persuaded by the reasoning in Tsarnaev , and the government's supplemental submission did not convince the Court otherwise.
Importantly, even in those cases where pre-authorization discovery is ordered, including in the context of Brady , courts typically refrain from ordering the disclosure of witness identity and statements. See , e.g. , United States v. Cervantes , No. 12-cv-00792 YGR (NC), 2013 WL 2299622, at *5 (N.D. Cal. May 24, 2013) (although ordering certain disclosures in the exercise of discretion, declining to order disclosure of witness statements); Pray , 764 F. Supp. 2d at 191 (denying motion to compel pre-authorization disclosure of equally culpable individuals in murders and a summary of issues that impaired government witness credibility due to safety risks); Delatorre , 438 F. Supp. 2d at 902 (ordering pre-authorization discovery, but not identity of witnesses); Ortiz , 2012 WL 5379512, at *5 (same). And Rule 16 certainly does not compel the disclosure of witnesses and their statements at this stage of the proceedings.
In his supplemental briefing, Wilson argued for the first time that Rule 16 ’s requirement of disclosure of his statements applies to statements of his alleged co-conspirators because of their potential admissibility pursuant to Federal Rule of Evidence 801(d)(2)(E). (See Dkt. 177 at 4-5). This is not consistent with Second Circuit precedent. See generally United States v. Myers , No. 97-CR-140 (RSP/GJD), 1997 WL 797507, at *4-5 (N.D.N.Y. Dec. 24, 1997) (Pooler, J.) (citing United States v. Percevault , 490 F.2d 126 (2d Cir. 1974) and In re United States , 834 F.2d 283 (2d Cir. 1987) ), aff'd , 208 F.3d 204 (2d Cir. 2000). Similarly, this argument has been rejected by other circuits, including the Fourth Circuit sitting en banc. See United States v. Roberts , 811 F.2d 257, 258 (4th Cir. 1987) (en banc); see also United States v. Orr , 825 F.2d 1537, 1541 (11th Cir. 1987) ("We agree with the Fourth Circuit that Rule 16(a)(1)(A) does not apply to coconspirator's statements."); United States v. Williams-Davis , 90 F.3d 490, 513 (D.C. Cir. 1996) ("That a declarant's statement becomes a statement of the defendant under F.R.E. 801(d)(2)(E) does not mean it becomes the defendant's statement for purposes of F.R.Crim. Pro. 16(a)(1)(A)....").
Moreover, with respect to confidential informants, the government "is not generally required to disclose the identity of confidential informants," and a defendant seeking disclosure must establish that "he will be deprived of his right to a fair trial" without the information. United States v. Fields , 113 F.3d 313, 324 (2d Cir. 1997) (citing Roviaro v. United States , 353 U.S. 53, 59, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957) ). Rule 16 certainly does not compel the disclosure of confidential informants. Based on these principles, the Court concludes that Brady and its progeny do not compel the government to provide Wilson with "pre-authorization" discovery in advance of the meeting with the DOJ. However, the Court further concludes that evidence with respect to mitigating factors that may influence the DOJ not to seek the death penalty in this case, may fall within the scope of Rule 16 discovery if Wilson makes a prima facie showing of materiality; alternatively, the Court acts pursuant to its inherent authority. Accordingly, examining the categories of information sought by Wilson, the Court concludes that Wilson has made a prima facie showing of materiality with respect to the "rap sheets" (if any) of Miguel Anthony Valentin-Colon, Nicole Marie Merced-Plaud, and Dhamyl Roman-Audiffred, reflecting each individual's criminal history (if any), and any books, papers, documents, data, photographs, or tangible objects, in the government's possession, custody, or control, that identifies any individual who is equally as culpable as Wilson with respect to the murders, that is not otherwise exempt from disclosure under Rule 16 (i.e. , that is not a report, memorandum or other internal government document made by an attorney for the government or other government agent in connection with investigating or prosecuting the case; that is not a statement made by a prospective government witness; and/or that is not a grand jury transcript). As previously indicated by this Court's Text Order, any such material was required to be produced by January 21, 2021.
At this time, the Court otherwise denies the requests for general investigatory information with respect to the alleged victims and any associated drug organizations, the witness identity information including cooperating witnesses, the catch-all request for information that "might be favorable, or mitigating, on the issue of whether the death penalty should be sought or imposed," and statements of alleged co-conspirators, on the grounds that the information falls outside the scope of Rule 16 and/or Wilson has not satisfied his burden under Rule 16 to compel disclosure of any such information.
To be clear, the Court is only reaching the issue of whether the information requested must be produced now in advance of the DOJ meeting, and it is not resolving whether a renewed request at a later point in the proceedings would be granted.
CONCLUSION
For the foregoing reasons, Wilson's motion (Dkt. 170) is granted in part and denied in part.
SO ORDERED.