United States District Court, D. Nevada
ORDER ON MOTION TO COMPEL DISCOVERY (DOCKET NO.
J. KOPPE United States Magistrate Judge
before the Court is Defendant Juan Antonio Zamora's
motion to compel discovery. Docket No. 41. The Court has
considered Defendant's motion, the United States'
response, and Defendant's reply. Docket Nos. 41, 45,
For the reasons discussed below, the Court hereby DENIES
February 13, 2017, Defendant filed a motion to suppress
evidence in the instant case. Docket No. 18. After the motion
was fully briefed, the Court set an evidentiary hearing on
the motion. Docket No. 25. On May 3, 2017, the Court held an
evidentiary hearing on Defendant's motion to suppress
evidence. Docket No. 33. At the end of the United States'
presentation, at Defendant's request, the Court continued
the hearing to May 25, 2017, in order to allow Defendant to
request certain additional discovery. Id. The
instant motion followed. Docket No. 41.
submits that, after the evidentiary hearing on May 3, 2017,
he asked the United States for the following discovery:
“(1) any and all information documents, etc. concerning
the tip that was testified to by the officers, (2) the
declaration of arrest for [Defendant], ... and (3) a report
or recording of any interview conducted with the
passenger.” Id. at 4. On May 9, 2017,
Defendant submits, the United States provided the declaration
of arrest for Defendant and stated that no interview was
conducted of the passenger. Id. Regarding the tip,
Defendant submits, the United States stated that it did not
have any Crimestopper Tip information in its care, custody,
or control, and that it understood that “Crimestoppers
is an independent agency, not law enforcement.”
Id. Defendant submits that information about the tip
“is undoubtedly material” to his defense.
Id. Further, Defendant contends that the testimony
at the evidentiary hearing undermines the United States'
assertion that the information is not within its care,
custody, or control. Id. at 5. Finally, Defendant
asks the Court, without any supporting authority, not to
consider the information regarding the tip in deciding the
motion to suppress if the United States does not turn over
the requested information. Id. at 5-6.
response, the United States submits that the Las Vegas
Metropolitan Police Department (LVMPD) has no record of the
tip. Docket No. 45 at 1. As such, the United States contends,
it has no duty to provide it as it does not have an
obligation to create discoverable material. Id. at
1-2. Finally, the United States submits that, as the tip was
a subsequent valid traffic stop was conducted of
Defendant's vehicle, the Court may consider the traffic
violations the basis for the stop. Id. at 2.
reply, Defendant questions whether the United States
submitted a broad enough request for the tip information.
Docket No. 46 at 2. Defendant again asks the Court not to
consider the tip in determining the underlying motion to
suppress. Id. at 3-4. Finally, Defendant submits
that his counsel does not believe that the continued
evidentiary hearing is necessary. Id. at 4.
16 provides that, upon a defendant's request, the
Government must provide the defense with “photograph
books, papers, documents, data, photographs, tangible
objects, buildings or places, or copies or portions of any of
these items, if the item is within the government's
possession, custody, or control” and if “(i) the
item is material to preparing the defense; (ii) the
government intends to use the item in its case-in-chief at
trial; or (iii) the item was obtained from or belongs to the
defendant.” Fed.R.Crim.P. 16(a)(1)(E). The rule
“triggers the government's disclosure obligation
only with respect to documents within the federal
government's actual possession, custody or
control.” United States v. Gatto, 763 F.2d
1040, 1048 (9th Cir. 1985).
United States submits that the information about the tip is
not within its custody and control. Defendant disputes the
United States' assertion. Nonetheless, as both parties
agree that the Court should not consider the tip in
determining the underlying motion to suppress, the Court need
not address this issue.
for the reasons stated above, IT IS ORDERED that
Defendant's motion to compel discovery, Docket No. 41, is
FURTHER ORDERED that the evidentiary hearing as currently set
is VACATED and RESET for closing arguments on the motion to