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United States v. Aleck

United States District Court, D. Nevada

July 20, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
JOLENE FRANCES ALECK, Defendant.

          ORDER

          MIRANDA M. DU UNITED STATES DISTRICT JUDGE

         I. SUMMARY

         Defendant Jolene Frances Aleck is indicted on one count of embezzlement and theft from an Indian tribal organization in violation of 18 U.S.C § 1163. (ECF No. 1.) Bureau of Indian Affairs (“BIA”) Special Agent Marla “Molly” Hernandez (“Hernandez”) conducted the investigation that ultimately led to the indictment and is expected to be a necessary witness for the government. (ECF No. 22.) Hernandez resigned her employment with the BIA effective January 2017. (Id. at 2-3.)

         Before the Court is Defendant's Motion for Hearing and Motion to Inspect and Produce Files of Federal Law Enforcement Agents and Officers (“Defendant's Motion”). (ECF No. 21.) Defendant's Motion asks the Court to direct the government to inspect the personnel files of all law enforcement officers who the government intends to call as witnesses and produce Brady/Giglio information, and to provide the files to the Court for in camera review to the extent the government is uncertain as to whether materials should be disclosed. This part of Defendant's Motion is denied without prejudice because Defendant does not present a dispute that the government has not complied with its obligations under Brady/Giglio. Defendant's Motion also asks the Court to review Hernandez's personnel file, particularly documents relating to the end of her employment. After Defendant filed her Motion, on May 19, 2017, the government filed an Ex-Parte Motion Requesting an In Camera Review of Giglio/Henthorn in Terms of any Disclosure Obligations (“Government's Motion”), asking the Court to conduct an in camera review of potential Giglio/Henthorn materials in reference to Hernandez. (ECF No. 22.) The Court grants the Government's Motion and has conducted the requested review under United States v. Henthorn, 931 F.2d 29 (1990) as detailed below. [1]

         Accordingly, the part of Defendant's Motion asking the Court to conduct a similar review is denied as moot.

         For the reasons discussed below, the Court finds that the materials in Hernandez's personnel file that were submitted to the Court for in camera inspection fall within the government's disclosure obligations and directs the government to produce the same to Defendant.

         II. MATERIALS REVIEWED

         The Government's Motion provides a summary of the information it received from the BIA in response to its request for Giglio/Henthorn materials. (ECF No. 22 at 2.) The BIA's response consists of a memo and an email identifying five personnel incidents relating to Hernandez:

XXXXX

(ECF No. 22-1 (Exhibit A to the Government's Motion).) In response to the Court's order for the government to submit the materials relating to these incidents, the government filed a DVD under seal. (ECF No. 27.) In response to a second order from the Court, government supplemented its filing to clarify that it does not possess any additional documents relating to the 2016 incident referenced in the Government's Motion. (ECF Nos. 28, 29.) The Court has reviewed these materials.

         III. REVIEW UNDER HENTHORN

         Under the Supreme Court's decision in Brady v. Maryland, 373 U.S. 83, 87 (1963), a prosecutor must disclose evidence that is “material either to guilt or to punishment.” In Giglio v. United States, 405 U.S. 150, 154 (1972), the Supreme Court extended Brady's disclosure requirement to evidence that may impeach a government witness. Materiality-whether the evidence “would have created a reasonable probability of a different result”-is the standard for disclosure. United States v. Jernigan, 492 F.3d 1050, 1053 (9th Cir. 2007) (quoting Kyles v. Whitley, 514 U.S. 419, 434 (1995)) (internal quotation marks omitted). Potential impeachment evidence is material because, “if disclosed and used effectively, it may make the difference between conviction and acquittal.” Id. (quoting United States v. Bernal-Obeso, 989 F.2d 331, 335 (9th Cir. 1993)). This legal system tests witness veracity through cross-examination, which is why impeachment evidence must be timely revealed. United States v. Price, 566 F.3d 900, 912 (9th Cir. 2009).

         Federal Rule of Evidence 608(b) provides that “specific instances” of a witness's prior conduct may be admissible in the court's discretion, “if they are probative of the character for truthfulness or untruthfulness.” Id. (citing United States v. Van Brandy, 726 F.2d 548, 552 (9th Cir. 1984)). “Brady requires that such material be turned over to the defense.” Id. (citing United States v. Van Brandy, 726 F.2d 548, 552 (9th Cir. 1984)). At this stage, the question is whether impeachment information is discoverable-not whether it will be ultimately admissible or admitted-and defendants should be permitted opportunities to review the potential impeachment evidence and argue its admissibility.

         Having reviewed the government's submission in camera, the Court finds that the materials submitted may be considered impeachment materials subject to disclosure. XXXXX[2],XXXXX[3] “Evidence . . . offered to cast doubt on the testimony of [an investigating] officer[] and the evidence [she] helped to collect [is] about as textbook an example of ...


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