United States District Court, D. Nevada
J. Dawson United Sates District Judge
the Court for consideration is Defendant's Motion to
Enforce Discovery: Government to Disclose its Entire Records
“On Project Safe Neighborhood” Project Effect
(#135). The Government filed a response in opposition (#138),
to which Defendant replied (#141).
contends that he is entitled to production of “all
information on the Project Safe Neighborhood (hereinafter
“PSN”) program, ” specifically the
1) The criteria for cooperation and for prosecution or
rejection of state cases; 2) The strategic plan regarding the
Project; 3) A list of what documents and information the U.S.
Attorney retains for cases prosecuted or rejected as part of
Project Safe Neighborhoods; 4) Writings regarding or
comprising the Memoranda of Understanding between the Federal
Government and the Prosecutors' Offices in the District
of Nevada; 5) Statistics distinguishing between cases
resolved by plea in State Court and those referred for
prosecution in Federal Court; and 6) Any statistics on the
cases the U.S. Attorney prosecutes or rejects by race.
in criminal cases is governed generally by Fed. R. Crim. P.
16 and Brady v. Maryland, 373 U.S. 83 (1963). Rule
16(a)(1)(E) in relevant part requires that, upon a
defendant's request, the Government must “disclose
any documents or other objects within its possession,
custody, or control” that are “material to
preparing the defense.” “[T]o obtain discovery
under Rule 16, a defendant must make a prima facie showing of
materiality.” “Neither a general description of
the information sought nor conclusory allegations of
materiality suffice; a defendant must present facts which
would tend to show that the Government is in possession of
information helpful to the defense.” United States
v. Mandel, 914 F.2d 1215, 1219 (9th Cir. 1990).
Brady, the Government must disclose information
favorable to the defendant that “is material either to
guilt or punishment.” Brady, 373 U.S. at 87.
Evidence is material for Brady purposes if a
“reasonable probability” exists that the result
of a proceeding will be different if the Government discloses
the information to the defendant. United States v.
Bagley, 473 U.S. 667, 682 (1985). Importantly,
“[i]t is the [G]overnment, not the defendant or the
trial court, that decides prospectively what information, if
any, is material and must be disclosed under
Brady.” United States v.
Lucas, 841 F.3d 796, 807 (9th Cir. 2016) (emphasis in
original). Brady does not permit a defendant to go
through the Government's files in order to hopefully find
evidence that is material to his case:
A defendant's right to discover exculpatory evidence does
not include the unsupervised authority to search through the
[government's] files. Although the eye of an advocate may
be helpful to a defendant in ferreting out information, this
Court has never held ... that a defendant alone may make the
determination as to the materiality of the information.
Settled practice is to the contrary. In the typical case
where a defendant makes only a general request for
exculpatory material under Brady, it is the
[Government] that decides which information must be
disclosed.... [A defendant] has no constitutional right to
conduct his own search of the [Government's] files to
Pennsylvania v. Ritchie, 480 U.S. 39, 59-60 (1987)
(footnote and citations omitted); see also
Weatherford v. Bursey, 429 U.S. 545, 559 (1977)
(“There is no general constitutional right to discovery
in a criminal case, and Brady did not create
to the Bureau of Justice Assistance of the U.S. Justice
Department's website, Project Safe Neighborhoods (PSN) is
a nationwide commitment to reduce gun and gang crime in
America by networking existing local programs that target gun
and gun crime and providing these programs with additional
tools necessary to be successful.
Government asserts that Defendant is not entitled to any
information regarding the inner workings, practices, or
policies of the PSN program under either Rule 16 or
Brady. To support its position, the Government
points to Rule 16 which states, in pertinent part, that
“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” are not discoverable. Further,
the Government points to a recent Ninth Circuit ruling which
illustrates that absent an actual showing of inter-government
collusion, the Government was not required to disclose
information about the “inner workings” of a PSN
program to a defendant pursuant to either Rule 16 or under
Brady. See United States v. Lucas, 841 F.3d
796, 807 (9th Cir. 2016).
Court finds that Defendant has made no showing of materiality
or illustrated that the requested PSN-related material
contains favorable evidence relating either to guilt or
declares entitlement to these documents without providing any
authority or facts to support his declaration. Further, this
Court finds that Defendant's Motion functions more like a
proverbial fishing expedition in hopes that he may possibly
find useful information to use during sentencing. This
purpose runs afoul of Brady and Rule 16. To the
extent that Defendant's Motion contains a request for a
subpoena for “any and all information relating to the
dual prosecution agreement between the U.S. Attorney's
Office and the Clark County Prosecutor's Office that is
part of the PSN program, ” this request is DENIED.
According to the Government, there is no “dual
prosecution agreement” between the United States
Attorney's Office for the District of Nevada ...