United States District Court, D. Nevada
M. Navarro, Chief-Judge United States District Judge
before the Court are two Motions to Compel, (ECF No. 1465,
1478), and two Motions to Dismiss, (ECF No. 1491, 1492,
1493), variously filed and joined by Defendants Cliven D.
Bundy, Ryan C. Bundy, Ammon E. Bundy, Ryan W. Payne, Peter T.
Santilli, Jr., Melvin D. Bundy, David H. Bundy, Brian D.
Cavalier, Blaine Cooper, Gerald A. Delemus, Eric J. Parker,
O. Scott Drexler, Richard R. Lovelien, Steven A. Stewart,
Todd C. Engel, Gregory P. Burleson, Joseph D.
O'Shaughnessy, Micah L. McGuire, and Jason D. Woods
(collectively “Defendants”). For the reasons
discussed below, the Court GRANTS the Motions to Compel and
DENIES the Motions to Dismiss.
January 30, 2017, the Office of Inspector General
(“OIG”) of the United States Department of
Interior (“DOI”) posted a report to its website
titled “Investigative Report of Ethical Violations and
Misconduct by Bureau of Land Management Officials, ”
(“OIG Report”). (See Ex. 1 to Mot. to
Compel (“OIG Report”), ECF No. 1465-1). The OIG
Report states that an unnamed “Supervisory Agent
violated Federal ethics rules when he used his influence with
Burning Man officials to obtain three sold-out tickets and
special passes for his father, girlfriend, and a family
friend” and “misused his BLM official vehicle
when he transported his girlfriend while at the event.”
(Id. at 2). Further, the OIG Report determined that
the “Supervisory Agent intervened in the hiring process
by increasing the number of candidates that would be
interviewed, ” resulting in the hiring of the
Supervisory Agent's friend as a BLM special agent.
(Id. at 3). The OIG Report concluded by stating that
the OIG is “forwarding [its] report of investigation to
the Assistant Secretary for Land and Minerals Management for
any action deemed appropriate.” (Id. at 16).
the OIG Report does not name the Supervisory Agent involved,
subsequent news articles posit his identity as Supervisory
Special Agent Daniel P. Love (“SSA Love”) of the
Bureau of Land Management (“BLM”), an agency of
the DOI. (Mot. to Dismiss 4:7-20, ECF No. 1491). The
Government has represented that it intends to call SSA Love
as a witness during trial. (Id.). Each of
Defendants' Motions to Compel and Motions to Dismiss
complain that the Government's failure to disclose the
OIG Report warrant various forms of relief. The Court
considers the Motions below.
Motions to Compel
instant Motions to Compel, Defendants point out that the OIG
Report posted online purports to be “a version . . .
prepared for public release.” (See OIG Report
at 1). Accordingly, Defendants “request that the
Court issue an Order to produce the unredacted report for
in camera review.” (Mot. to Compel 2:8-9, ECF
Brady v. Maryland, 373 U.S. 83, 87 (1963), the
Supreme Court ruled that the suppression by the prosecution
of evidence favorable to an accused, upon request for
disclosure by the accused, violates due process where the
evidence is material to the guilt or punishment of the
accused. Materiality is the touchstone in the determination
of whether certain evidence qualifies as Brady
material. United States v. Dupuy, 760 F.2d 1492,
1501 n.3 (9th Cir. 1985). The Supreme Court later expanded
the concept of exculpatory evidence to include evidence that
could be used to impeach government witnesses. Giglio v.
United States, 405 U.S. 150 (1972).
Ninth Circuit Court of Appeals set forth a procedure in
United States v. Cadet, 727 F.2d 1453 (9th Cir.
1984), that “the prosecution must follow when
confronted with a request by a defendant for the personnel
files of testifying officers.” United States v.
Henthorn, 931 F.2d 29, 30 (9th Cir. 1991). “The
government must disclose information favorable to the defense
that meets the appropriate standard of materiality . . . If
the prosecution is uncertain about the materiality of
information within its possession, it may submit the
information to the trial court for an in camera inspection
and evaluation.” Id. at 30-31 (quoting
Cadet, 727 F.2d at 1467-68).
Report implicates exactly this type of material evidence.
Indeed, the OIG Report details several violations of federal
ethics regulations, misuse of government property, misuse of
a government position, and “a lack of candor when
interviewed.” (OIG Report at 2- 3). At a minimum,
Defendant may use this alleged misconduct on
cross-examination to impeach SSA Love. See Fed. R.
Evid. 608(b) (permitting cross-examination on specific
instances of misconduct “if probative of truthfulness
or untruthfulness”). Accordingly, the Court finds that
the OIG Report is material evidence. See Silva v.
Brown, 416 F.3d 980, 987 (9th Cir. 2005)
(“Impeachment evidence is especially likely to be
material when it impugns the testimony of a witness who is
critical to the prosecution's case.”).
light of this determination, the Court finds that the
Government is subject to certain disclosure requirements if
it intends to call SSA Love as a witness. In particular, the
OIG Report's statement that it is “a version . . .
prepared for public release” suggests that a non-public
version exists. If so, the Government must disclose an
unredacted version of the OIG Report pursuant to
Henthorn if it is contained in SSA Love's
personnel file. See United States v. Santiago, 46
F.3d 885, 895 (9th Cir. 1995) (“Under
Henthorn, the government has a duty, upon
defendant's request for production, to inspect for
material information the personnel records of federal law
enforcement officers who will testify at trial.”). Even
if the OIG Report is not included in SSA Love's personnel
file, Brady and Giglio compel its
production in unredacted form. See United States v.
Jennings, 960 F.2d 1488, 1490-91 (9th Cir. 1992)
(“[The Government's Brady] responsibility
cannot be evaded by claiming lack of control over the files
or procedures of other executive branch agencies.”).
The Court therefore GRANTS Defendants' Motions to Compel.
clarify, the Government need not submit the unredacted OIG
Report for in camera review before disclosing it to
Defendants, as the Court has already confirmed that the OIG
Report is material. To the extent Defendants seek disclosure
of the personnel records of other federal agents, the Court
reminds the Government that it has a continuing duty inspect
for material information the personnel records of federal law
enforcement officers who will testify at trial. See
Pennsylvania v. Ritchie, 480 U.S. 39 (1987) (noting that
Brady's duty to disclose is
“ongoing” as “information that may be
deemed immaterial upon original examination may become
important as the proceedings progress”). The Government
is not required to disclose the contents of personnel records
unless they are material. See, e.g.,
Henthorn, 931 F.2d at 30. The Court does not order
disclosure beyond these requirements.