United States District Court, D. Nevada
C. JONES United States District Judge.
Fred James Nix (“Defendant”) is scheduled to
appear on July 13, 2017, for a hearing regarding the
revocation of his supervised release. Now pending before the
Court is Defendant's emergency motion for the production
of portions of his probation file, namely monthly reports and
chronologies, in advance of the hearing. (ECF No. 1157.) For
the reasons given herein, the motion is denied.
FACTS AND PROCEDURAL BACKGROUND
March 29, 2010, Defendant was sentenced to sixty months'
imprisonment to be followed by five years of supervised
release. (ECF Nos. 319, 321.) On March 21, 2012, Defendant
was released to the Residential Reentry Center
(“RRC”) in Las Vegas, Nevada, to complete his
sentence. On May 12, 2012, Defendant walked out of the RRC
and was later charged with escape. On January 22, 2013,
Defendant was convicted of escape and sentenced to four
months' imprisonment with one year of supervised release
to follow. (See United States v. Nix, No.
2:12-cr-366-MMD-PAL, ECF Nos. 21, 22.) The supervised release
terms of both sentences were to run concurrently. Thereafter,
on December 3, 2013, Defendant began serving his term of
April 27, 2017, United States Probation Officer Joe Nilo
submitted a Petition for Warrant for Offender under
Supervision (“Petition”). (ECF No. 1141.) On
April 28, 2017, this Court issued an Order for a warrant for
Defendant's arrest. (ECF No. 1142.) The Petition alleges
that on April 22, 2017, Defendant: (1) committed the offenses
of prohibited person in possession of a firearm, possession
of controlled substance schedule I-IV(methylenedyoxy), and
possession of marijuana with intent to sell; (2) illegally
possessed a controlled substance; (3) associated with a
criminal, namely Kanika Moore, who was arrested along with
him for possession of marijuana with intent to sell and
possession of a controlled substance; and (4) possessed a
weapon as he was charged with prohibited person in possession
of a firearm.
asserts that on May 10, 2017, his counsel requested various
discovery from the Government, including portions of
Defendant's probation file. (Mot. Prod. 4, ECF No. 1157.)
In response, the Government produced Defendant's
presentence investigation report and relevant police reports
and search warrants, but did not produce the monthly reports
or chronologies from Defendant's probation file.
(Id.) After conferring with the Government, and
learning that the Government did not have the requested
probation documents in its possession, Defendant's
counsel contacted the probation office directly. The
probation officer involved in this case told Defendant's
counsel that he would be unable to provide the requested
monthly reports and chronologies without a court order, hence
the instant motion.
probationer does not have an absolute right to the disclosure
of his probation file prior to a revocation hearing. Rather,
the right he holds is to the disclosure of evidence
against him. Fed. R. Crim. P. 32.1(b)(2)(B).
Accordingly, the Ninth Circuit has held that there is no due
process violation where a probation file is not disclosed, so
long as the documents in the file are not used as evidence at
the hearing. See, e.g., United States v.
Tham, 884 F.2d 1262, 1265 (9th Cir. 1989); United
States v. Donaghe, 924 F.2d 940, 944 (9th Cir. 1991);
see also United States v. Neal, 512 F.3d 427, 436
(7th Cir. 2008). The duty lies with the Government to
disclose any documents it intends to offer or introduce into
evidence. If the Government fails to disclose certain
material, such material may not be used as evidence against
Defendant. Therefore, the Court will not order a broad
disclosure of documents in Defendant's probation file;
the Government may not intend to use them. The duty to
disclose evidence is well-established in Rule 32.1, and the
Government bears the burden of compliance.
Defendant's assertion that the principles of Brady v.
Maryland, 373 U.S. 83 (1963), are applicable to
revocation proceedings is fatally undermined by the case law.
The Supreme Court established long ago that “the
revocation of parole is not part of a criminal prosecution
and thus the full panoply of rights due a defendant in such a
proceeding does not apply to parole revocations.”
Morrissey v. Brewer, 408 U.S. 471, 480 (1972). The
Seventh Circuit has observed that in Morrissey,
“the Supreme Court set forth the more streamlined
process that is due to an individual already convicted of an
underlying crime, but in danger of losing his conditional
liberty.” Neal, 512 F.3d at 435. That
“more streamlined process” was subsequently
codified in Federal Rule of Criminal Procedure 32.1(b)(2).
See Id. at 435 n.8; see also United States v.
LeBlanc, 175 F.3d 511, 515 (7th Cir. 1999) (stating that
Rule 32.1 is a “codification of
Morrissey”); United States v.
Gonzalez, No. 13-cr-424-WJM, 2016 WL 8458986, at *2 (D.
Colo. May 18, 2016) (same). Therefore, under
Morrissey, so long as Rule 32.1 is followed, a
probationer will receive all the due process he is entitled
appears that no Court of Appeals has held that Brady
applies to revocation proceedings. In fact, the Eleventh
Circuit has specifically opined, albeit in an unpublished
opinion, that “Brady only applies to criminal
prosecutions and not to probation revocation hearings.”
United States v. Ataya, 145 F. App'x 331, 333
n.2 (11th Cir. 2005). The Seventh and Eighth Circuits have
also addressed the question in dicta, but both courts
ultimately declined to answer it. See Neal, 512 F.3d
at 436-37; United States v. Quiroz, 374 F.3d 682,
684 (8th Cir. 2004). In support of his position, Defendant
cites United States v. Dixon, 187 F.Supp.2d 601, 604
(S.D. W.Va. 2002), in which the district court devised a
special procedure for the disclosure of exculpatory evidence
in a revocation proceeding. (Mot. Prod. 5, ECF No. 1157.)
However, as the District of Colorado recognized in
Gonzalez, “Dixon is an outlier,
” and it has not been followed “outside the one
judicial district where it was adopted.” 2016 WL
8458986, at *3. Defendant also cites United States v.
Ferrara, No. 89-289-MLW, 2008 WL 2222033, at *3 (D.
Mass. May 23, 2008), for the proposition that Brady
applies to revocation proceedings. However, Ferrara
has very little if any precedential value due to its lack of
meaningful analysis and its complete failure to consider
Morrissey and its progeny.
reliance on Brady further fails because his motion
concedes that the documents he seeks are in the custody of
the probation office, and “while Brady applies
to prosecutors in the ‘guilt phase' of criminal
proceedings, the Probation Office is not a prosecutor and
‘supervised release revocation hearings are not
criminal prosecutions.'” Gonzalez, 2016 WL
8458986, at *3 (citing Neal, 512 F.3d at 434).
Unlike the prosecution, the Probation Office “serves as
an investigative and supervisory arm of the court.”
United States v. Davis, 151 F.3d 1304, 1306 (10th
Cir. 1998) (quoting United States v. Burnette, 980
F.Supp. 1429, 1433 (M.D. Ala. 1997)); see also United
States v. Combs, 267 F.3d 1167, 1173 (10th Cir. 2001)
(“the Probation Office . . . is a judicial
agency”); United States v. Reyes, 283 F.3d
446, 455 (2d Cir. 2002) (describing Probation Officer as a
“confidential advisor to the court, ” “the
court's eyes and ears, ” and “a neutral
information gatherer with loyalties to no one but the
court” (internal quotation marks omitted));
United States v. Washington, 146 F.3d 219,
223 (4th Cir. 1998) (Probation Office is “not an agent
of the prosecution” (citation omitted)). Thus,
disclosure pursuant to Brady “is not compelled
. . . if the [evidence is] in the hands of . . . the
probation office.” United States v. Zavala,
839 F.2d 523, 528 (9th Cir. 1988).
the Court recognizes that the Government is required to
produce any statement of a testifying witness that is in the
Government's possession and that relates to the subject
matter of the witness's testimony. Fed. R. Crim. P.
26.2(a)-(d), (f), 32.1(e). However, there is no requirement
that the statement be provided prior to the witness
testifying. See United States v. Hudson, No.
2:08-cr-048-RLH-RJJ, 2016 WL 953235, at *2 (D. Nev. Mar. 14,
2016). In fact, under Rule 26.2(a) the duty to produce
witness statements is specifically ...