United States District Court, D. Nevada
CAM FERENBACH, Magistrate Judge.
This matter involves the United States' prosecution of Yan Juan Zhen for conspiracy to manufacture and possess marijuana in violation of 21 U.S.C § 841(a)(1). Before the court is Ms. Zhen's Motion for Discovery (#84). The government opposed (#109); and Zhen replied (#110). For the reasons stated below, Ms. Zhen's motion is denied.
On January 8, 2013, a Special Agent with the Drug Enforcement Administration, working in tandem with the Las Vegas Metropolitan Police Department, obtained a warrant to search a residence at 3337 Trickling Stream Circle in Las Vegas, Nevada. The suspicion: a large-scale marijuana grow operation existed inside.
The warrant was executed at 5:38 p.m., and the officer's suspicion was confirmed. A grow-operation spread across five rooms, which held 1, 481 rooted marijuana plants, various grow bulbs, related paraphilia, and a box spring. Two individuals, Quing Hui Chen and Biao Chang Zheng, were arrested.
On January 10, 2013, the investigation expanded. The Drug Enforcement Administration and Las Vegas Metropolitan Police Department entered an additional residence at 5:00 p.m., placed the occupant, Ms. Yan Juan Zhen, under arrest, and searched the home until 3:00 a.m. Three months later, Ms. Zhen was indicted for conspiracy to manufacture and possess marijuana and for aiding-and-abetting the manufacture of marijuana in violation of 21 U.S.C. § 841.
The parties are now in the midst of plea negotiations and discovery. On July 29, 2014, Ms. Zhen filed the instant Motion for Discovery, contending that the government is withholding information that is favorable to her defense. She seeks (1) "[c]opies of all recorded communications related to the detentions, searches, and arrest of Ms. Zhen... by any and all officers involved in the investigation of this case" ( i.e., law enforcement communications) and (2) "[a] copy of any and all notes of investigative agencies, public or private, state or federal, local or otherwise involving the investigation of this case which tends to exculpate the defendant as to either guilt or punishment, " including statement by Zheng and Chen ( i.e., alleged co-conspirator statements). (Def.'s Mot. for Disc. (#84) at 1:22-24; 2:20-25).
On February 12, 2015, the court heard oral argument on Ms. Zhen's motion. This order follows.
Discovery in criminal cases was historically disallowed. See FED. R. CRIM. P. 16, Advisory Comm. Notes (1944). The modern trend, however, favors disclosures that are more "analogous to the civil practice." Dennis v. United States, 384 U.S. 855, 871 (1966). Although "[t]here is no general constitutional right to discovery in a criminal case, " see Weatherford v. Bursey, 429 U.S. 545, 559 (1977), there are now three authorities require the parties to make disclosures: (1) Federal Rule of Criminal Procedure 16, (2) the Due Process Clause, and (3) the Jencks Act, 18 U.S.C. § 3500, and Rule 26.2. Each is addressed below.
I. Disclosures under Rule 16
Federal Rule of Criminal Procedure 16 governs "discovery and inspection." It provides the defendant with "a broad right of discovery." United States v. Stever, 603 F.3d 747, 752 (9th Cir. 2010). Under the rule, the government has a "continuing duty" to disclose: (1) the defendant's oral, written or recorded statements, (2) the defendant's prior criminal record, (3) documents and tangible objects within the government's possession that (i) are material to the preparation of the defendant's defense, (ii) are intended for use by the government as evidence in chief at the trial, or (iii) were obtained from or belong to the defendant; (4) reports of examinations and tests that are material to the preparation of the defense; and (5) written summaries of expert testimony that the government intends to use during its case in chief at trial. FED. R. CRIM. P. 16(a), (c).
Rule 16 is a product of fairness. It permits the defendant to obtain material "that would have been otherwise available to him had it not been impounded by the government." WRIGHT & HENNING, supra, at § 251 at p. 63; accord FED. R. CRIM. P. 16, Advisory Comm. Notes (1944, 1975). It is triggered "upon a defendant's request" and captures only "documents within the federal government's actual possession, custody, or control." United States v. Gatto, 763 F.2d 1040, 1049 (9th Cir. 1985). Rule 16 places no obligation on the government "to turn over materials not under its control." Id.
To obtain discovery under Rule 16, a defendant must make a prima facie showing of materiality. United States v. Little, 753 F.2d 1420, 1445 (9th Cir. 1984). This "requires a presentation of facts which would tend to show that the government is in possession of information helpful to the defense." United States v. Santiago, 46 F.3d 885, 894 (9th Cir. 1995) (citation omitted). "Whether evidence is useful, ' favorable, ' or tends to negate the guilt or mitigate the offense' are semantic distinctions without difference in a pretrial context." United States v. Acosta, 357 F.Supp.2d 1228, 1233 ...