Opinion
Cr.S-06-58 FCD.
October 31, 2008
ORDER
This matter was on calendar on October 29, 2008 for a hearing on defendant Rai's motions for the government to undertake aHenthorn review, for discovery, and for a bill of particulars. Camil Skipper, Assistant United States Attorney, appeared for the government. James Greiner, Esq., was present for defendant Rai. Timothy Zindel, Assistant Federal Defender, appeared for defendant Caza and stood in for Michael Stepanian and Randy Sue Pollock, Esq., who represent defendant Jagprit Sekhon; as well as for David W. Dratman, Esq., who represents defendant Jagdip Sekhon; and Jai Gohel, Esq., who represents defendant Luciana Harmath. Mr. Zindel joined the motion on behalf of his client and of defendants Jagprit and Jagdig Sekhon and Harmath. The defendants, who have waivers of appearance on file, were not present.
I. Henthorn Motion (Docket No. 125)
Defendant has asked the government to undertake review of the files of over seventy government agents and provide any impeaching material to the defense. In United States v. Henthorn, 931 F.2d 29, 30-31 (9th Cir. 1991), the Ninth Circuit held that when the defense asks for release of the personnel files of officers who will testify, the government must undertake a review and "disclose information favorable to the defense that meets the appropriate standard of materiality. . . . "
Ms. Skipper has informed the court and counsel that she has begun the review of the files of thirteen officers and agents who will or who might be called as witnesses and anticipates completing the review by December 1. Ms. Skipper's assurance that she understands her obligation is a sufficient response to this motion. See United States v. Jennings, 960 F.2d 1488, 1492 (9th Cir. 1992)
II. Motion For Discovery (Docket No. 129)
Defendant seeks fourteen categories of information about two confidential informants denominated CI-32 and CI-18. The government responds that CI-32 will not be called as a witness and that it will provide Brady and Giglio material commensurate with its duty and Jencks material at least ten court days before trial.
Brady v. Maryland, 373 U.S. 83 (1963); Giglio v. United States, 405 U.S. 150 (1972).
A range of material about informants may be discoverable under Fed.R.Crim.P 16(a)(1)(E)(i), when a defendant has made a showing that the matter sought is material to the preparation of the defense. United States v. Armstrong, 517 U.S. 456, 462 (1996); United States v. Pesaturo, 519 F.Supp.2d 177, 190 (D. Mass. 2007). The court is mindful of defendant's argument that a showing of materiality is difficult when the identity of the informant has not been released; nevertheless, the court finds the defense has not made the requisite showing.
III. Motion For A Bill Of Particulars (Docket No. 130)
Defense counsel asked to delay resolution of this motion to allow him to file a reply to the government's opposition. His request for a continuance is granted.
IT IS THEREFORE ORDERED:
1. Defendant Rai's Henthorn motion (docket no. 125) is granted to the extent the court relies on the prosecutor's representations, including her understanding of her obligations;
2. Defendant Rai's motion for discovery (docket no. 129) is resolved as follows:
a. the motion is granted as to Brady and Giglio material in the government's possession, which should provided in sufficient time so the defense may make use of it. United States v. Fernandez, 231 F.3d 1240, 1248, n. 5 (9th Cir. 2000);
b. the motion is granted as to Jencks material, to be provided at least ten court days before trial; and
c. the motion is denied in all other respects without prejudice.
3. The hearing on the motion for a bill of particulars (docket no. 130) is continued to November 4, 2008 at 2:00 p.m. in Courtroom 27, before the Honorable Dale A. Drozd.