July 25, 2005
UNITED STATES OF AMERICA PLAINTIFF,
WILLIAM EDWARD PIERS, DEFENDANT
The opinion of the court was delivered by: Roberts, Magistrate J.
ORDER REGARDING MOTION FOR DISCOVERY
(Docket No. 229A)
Defendant William Edward Piers seeks an order directing the government to provide as discovery the entire files of the United States Attorney, the FBI, the Alaska State Police (sic) and the Anchorage Police Department, related to this case as well as any related files of local and municipal law enforcement agencies that were involved in his case. Docket No. 229A. The motion is opposed by the government. Docket No. 230. Piers submitted a reply, Docket No. 231. For reasons stated below the defendant's request for discovery is overly broad and therefore denied in part and granted in part.
The motion raises the issues of the scope of the government's present duty to turn over exculpatory evidence relevant to a habeas corpus proceeding. The right to discovery by a federal prisoner pursing a § 2255 motion is not obtainable merely by stating that the defendant has a "substantial need" for the material. However, it is clear that under the Brady*fn1 doctrine "Suppression by the prosecution 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. Brady establishes that the prosecutor has a broad duty to disclose exculpatory material to the defense. Brady is not a discovery rule; rather it is grounded in the constitutional guarantee of due process of law contained in the Fifth and Fourteenth Amendments of the U.S. Constitution. Essentially, Brady provides that non disclosure of material exculpatory evidence violates a defendant's due process right to a fair trial. See United States v. Bagley, 473 U.S. 667, 675 (1985).
The purpose of Brady, then, is to ensure that a miscarriage of justice does not occur and that the government complies with the notions of fundamental fairness in their representation of the people (the sovereign). In accordance with Brady the Constitution does not require the prosecution to divulge every possible shred of evidence that could conceivably benefit the defendant. Moore v. Illinois, 408 U.S. 786, 795 (1972). The prosecution is not required to make a complete and detailed accounting to the defense of all police investigatory work on a case. Id. Due process only requires the disclosure of material exculpatory evidence which, "if suppressed, would deprive the defendant of a fair trial." Bagley 473 U.S. at 675.
In order to establish a Brady violation the defendant bears the burden of establishing the following: (1) that the prosecution suppressed evidence; (2) that the evidence was favorable to the accused; and (3) that the evidence was material. United States v. Hughes, 33 F.3d 1248, 1251 (10th Cir.1994). It is not the function of discovery in a collateral proceeding to increase the prosecution's burden to disclose exculpatory information nor to increase the defendant's right to receive information.
In a post-conviction proceeding by a federal prisoner seeking relief under 28 U.S.C. § 2255, the court has discretion whether to allow discovery at all, and, if so, whether to allow it under Federal Criminal Rule 16. See Rule 6 of the Section 2255 Rules. Rule 6(b) of the Section 2255 Rules requires a party requesting discovery to provide reasons for the request. Brady does not create a discovery rule. "An interpretation of Brady to create a broad, constitutionally required right of discovery `would entirely alter the character and balance of our present system of criminal justice." ' United States v. Bagley, 473 U.S. 667, 675, n. 7, quoting from the dissenting opinion in Giles v. Maryland, 386 U.S. 66 (1967).
Prior to trial the court normally grants discovery pursuant to Federal Criminal Rule 16 thereby avoiding the constitutional questions posed by Brady. United States v. Agurs, 427 U.S. 97, 108 (1976) teaches that a prudent prosecutor will resolve doubtful questions in favor of disclosure. See also Kyles v. Whitley, 514 U.S. 419, 439 (1995). The court is mindful of the Supreme Court's admonition that "disclosure, rather than suppression, of relevant materials ordinarily promotes the proper administration of criminal justice." Dennis v. United States, 384 U.S. 855, 871 (1966). In light of that statement, when there is a substantial basis for claiming that material is within Brady, the prosecutor should either furnish the information to a defendant or submit the problem to the trial judge. "Although there is, of course, no duty to provide defense counsel with unlimited disclosure of everything known by the prosecutor, if the subject matter of such a request is material, or indeed if a substantial basis for claiming materiality exists, it is reasonable to require the prosecutor to respond either by furnishing the information or by submitting the problem to the trial judge." United States v. Agurs, 427 U.S. at 106.
The broad discovery requested by Piers is not mandated under either the Federal Criminal Rules of Procedure or the Federal Rules of Civil Procedure. Piers cites cases where the district court entered a discovery order, but none of those cases describe the precise discovery ordered by the court nor did any court direct the government to produce the entire files of the prosecutor and law enforcement agencies. See for example, United States v. Weintraub, 871 F.2d 1257, 1259 (5th Cir.1989) ("subsequent discovery revealed ..."); Rice v. Clarke, 923 F.2d 117, 118-19 (8th Cir.1991)(appeals court upheld the Federal District Court's denial of the defendant's motion to conduct additional discovery to determine whether the state had a voice print analysis of a 911 tape because the petitioner had failed to produce any information on that issue.) Piers cites Strickler v. Greene, 527 U.S. 263, 278 (1999) wherein the district court on federal habeas review entered a sealed, ex parte order granting the state habeas petitioner's counsel the right to examine and to copy all the police and prosecution files in the case. The Supreme Court characterized the discovery order entered by the district court as "broad" and observed that "[m]ere speculation that some exculpatory material may have been withheld is unlikely to establish good cause for a discovery request on collateral review." 527 U.S. at 286.
Piers cites Bracy v. Gramley, 520 U.S. 899, 908-09 (1997) in support of his request for discovery where there is "reason to believe that the petitioner may, if the facts are fully developed be able to demonstrate that he is ... entitled to relief." Bracy is not a Brady case. None of the cases cited by Piers addressing discovery in a § 2255 case raising a Brady issue as broad as Piers's discovery requests. Accordingly, the defendant's request for discovery of the entire files of the prosecution and involved law enforcement agencies is hereby denied.
In light of the three components of a true Brady violation, discovery requests usually focus on identifying evidence favorable to the accused, either because it is exculpatory, or because it is impeaching apart from whether that evidence may have been suppressed by the government either willfully or inadvertently or prejudice may have ensued. Discovery may also include conduct attributable to the government that impedes the defense counsel's access to the factual basis for defending against the charges or that might establish cause for a procedural default in failing to raise a Brady claim either before the trial court or on appeal.
After reviewing the defendant's memoranda in support of his discovery request I find that there is a sufficient prospect of existing exculpatory material that may not be known to Piers's present counsel to support Piers's request for some "discovery" in the Brady context. A review by the assigned AUSA after being alerted to the possibility of potential Brady material by Piers's motion to vacate sufficiently lessens the risk that exculpatory information will go undiscovered or undisclosed by an employee of the Department of Justice. Thus, a newly directed search for possible exculpatory information should be undertaken in light of the factual basis in which the case developed at trial and in light of the current Brady related allegations in the motion to vacate. Such review will enable the prosecutor to identify possible Brady material that may have been overlooked unintentionally prior to trial. Brady requires the government to examine the personnel files of its law enforcement officer witnesses for exculpatory material without an initial showing of materiality. United States v. Henthorn, 931 F.2d 29, 30 (9th Cir.1991). The government's prosecuting attorney is responsible for compliance with the dictates of Brady and its progeny. United States v. Cadet, 727 F.2d 1453, 1467 (9th Cir.1984).
Therefore, the AUSA assigned this case should review, or have a person of suitable responsibility conduct a review, of law enforcement agencies or department's files that may contain the following: (1) material exculpatory information regarding the decision whether to prosecute the sister of the government's chief witness, Raymond Hubbard; (2) any acts or conduct by a person known to the law enforcement as "Adam" that may have had any bearing on the conspiracy for which Piers was indicted; (3) any reference in an investigative report, memorandum or note referring to the name "Adam" as an uncharged member of the alleged conspiracy; (4) any evidence that Megan Hubbard's fingerprints were found on the documents recovered from Mr. Hubbard's backpack found in one of the vehicles used in the get away vehicle; and (5) any reference in the investigative files to a "side agreement" between the government and anyone in order to obtain for the government favorable evidence or testimony or to prevent testimony or evidence from being produced in favor of the defendant.
Piers provides no factual basis to indicate that the government will not comply with its duty facially to conduct a review of its files for possible Brady material in light of the issues raised in the pending motion to vacate. Piers has not identified any unusual prosecutorial interest in maintaining secrecy of possible Brady material that might support mandatory in camera judicial review rather than prosecutorial review of possible Brady materials. No exculpatory evidence has been identified in the motion that the prosecution allegedly withheld. In his reply, counsel for Piers acknowledges the "defense team" has been working on Piers's case for over a year and has reviewed the complete discovery [provided by the government to Mr. Butler] several times. Docket No. 231, p. 3,n.1. This case calls for the usual prosecutorial rather than judicial examination. That is not to say that the court is not available for in camera review of material submitted by the government for that purpose. To the extent that the government relies upon a work product privilege for withholding "discovery" that the court orders produced, the government may submit that material for an in camera review together with a memorandum of points of authorities explaining the application of the work product doctrine to the facts at hand.
The government's review for exculpatory related material should commence forthwith. On or before close of business August 3, 2005, the prosecutor should provide his own affidavit as to his review undertaken to search or request a search for possible exculpatory evidence in compliance with this order.
As evidence of the government's compliance with its Brady obligation(s) and this Order, it is further ordered that the prosecutor submit an affidavit(s) by appropriate law enforcement officers personally familiar with the relevant facts of this investigation attesting to the fact that they have turned over to the assigned AUSA any possible exculpatory material relating to this case including items listed in Part II of this Order. Compare, United States v. Jennings, 960 F.2d 1488, 1491-92 (9th Cir.1992).