United States District Court, D. Nevada
M. Navarro, Chief Judge United States District Court
before the Court is the Motion to Dismiss (ECF No. 2087)
filed by Defendants Eric Parker (“Parker”), O.
Scott Drexler (“Drexler”), Steven Stewart
(“Stewart”), and Ricky Lovelien
“Defendants”). The Government filed a Response. (ECF
No. 2154). Defendants did not file a reply, and the time to
do so has passed.
March 2, 2016, a federal grand jury sitting in the District
of Nevada returned a Superseding Indictment charging nineteen
defendants with sixteen counts related to a confrontation on
April 12, 2014, with Bureau of Land Management
(“BLM”) Officers in Bunkerville, Nevada. (ECF No.
27). The first trial for Defendants, along with two
co-defendants, began on February 6, 2017 (hereinafter
referred to as “Trial 1”). (ECF No. 1528).
February 7, 2017, the Court granted the Government's
Motion in Limine for a Protective Order regarding Undercover
Employee Johnson that, inter alia, allowed Agent
Johnson to testify at Trial 1 using his undercover pseudonym
and prohibited the defense from asking questions regarding
personal identifying information and his other
investigations. (ECF No. 1539). On March 6, 2017, the Court
granted in part, denied in part Defendants' Motion to
Reconsider this Protective Order, ordering disclosure of
Agent Johnson's true name to counsel only. (ECF No.
1664). On March 22 and 23, 2017, Agent Johnson testified on
behalf of the Government during Trial 1 regarding an
undercover operation he ran subsequent to the April 12, 2014
incident in Bunkerville, Nevada, where he posed as a
documentary filmmaker and interviewed Parker and
Drexler. (ECF Nos. 1750, 1754). Portions of this
interview were played during Agent Johnson's Trial 1
testimony. Trial 1 ended in a mistrial upon jury deadlock on
April 24, 2017. (See ECF No. 1887). Retrial began
for Defendants on July 10, 2017. (ECF No. 2142).
instant motion, Defendants seeks to dismiss the case based on
an article dated May 16, 2017, entitled “How an
Undercover FBI Agent Ended Up in Jail After Pretending to be
a Journalist” that appears to be from a website called
“The Intercept.” (See Article, Ex. A to
Mot. To Dismiss, ECF No. 2087-1). The article discusses that
Agent Johnson “was arrested in Glendale, Colorado,
while acting undercover as a journalistic investigator, for
unauthorized practice of private investigations.” (Mot.
to Dismiss 2:8-10, ECF No. 2087). Defendants argue that the
Government failed to timely disclose this evidence, which
they claim is a violation of Brady, Giglio,
and Henthorn. (Id. 2:19-21). Defendants
acknowledge that “this violation may seem moot due to
the mistrial;” however, they argue that it
“prevented defendants from getting the fair trial that
they are entitled to . . . and the only proper remedy is for
this Court to order a dismissal.” (Id.
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. “There are three components of a true
Brady violation: The evidence at issue must be
favorable to the accused, either because it is exculpatory,
or because it is impeaching; that evidence must have been
suppressed by the State, either willfully or inadvertently;
and prejudice must have ensued.” Strickler v.
Greene, 527 U.S. 263, 281-82 (1999). 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); see also United States v. Blanco,
392 F.3d 382, 387 (9th Cir. 2004)
(“Brady/Giglio information includes
‘material . . . that bears on the credibility of a
significant witness in the case.'”) (omission in
original) (quoting United States v. Brumel-Alvarez,
991 F.2d 1452, 1461 (9th Cir. 1992)). Lastly, under
United States v. Henthorn, 931 F.2d 29, 30 (9th Cir.
1991), “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.” United States v.
Santiago, 46 F.3d 885, 895 (9th Cir. 1995).
of a valid indictment is an “extreme remedy, ”
United States v. Lopez, 4 F.3d 1455, 1464 (9th Cir.
1993), and a “drastic step” that is
“disfavored, ” United States v. Jacobs,
855 F.2d 652, 655 (9th Cir. 1988). “A district court
may dismiss an indictment on the ground of outrageous
government conduct if the conduct amounts to a due process
violation.” United States v. Barrera-Moreno,
951 F.2d 1089, 1091 (9th Cir. 1991). A Brady
violation justifies or requires dismissal of the indictment
only in cases rising “to the level of flagrant
prosecutorial misconduct.” United States v.
Williams, 547 F.3d 1187, 1202 (9th Cir. 2008).
their motion, Defendants argue that dismissal is necessary
because evidence of Agent Johnson's arrest “cast[s]
grave doubt on [his] credibility.” (Mot. to Dismiss
3:20-22). They further assert that Agent Johnson's
“personnel file related to this arrest should have been
turned over under Henthorn.” (Id.
3:21-23). Alternatively, Defendants contend the evidence
“should have been turned over under Giglio if
he was given any promise to resolve that arrest in exchange
for his testimony in trial.” (Id. 3:22-25).
Defendants additionally assert that the Government's
Trial 1 Motion in Limine seeking a protective order regarding
Agent Johnson made this a “willful violation” and
the “concealment . . . precluded [the defense] from
investigating anything about the witness, ” which is
why they discovered this evidence only “after the
conclusion of [Trial 1].” (Id.
Government responds that “neither the arrest nor the
alleged underlying conduct is admissible evidence and,
therefore, immaterial.” (Gov't Resp. 3:20-21, ECF
No. 2154). The Government asserts that the alleged arrest is
irrelevant to the instant case, as it was unrelated to Agent
Johnson's undercover activity here and occurred eighteen
months later. (Id. 4:18-21). The Government further
contends that the arrest would not be considered impeachment
evidence under Giglio because the regulatory
violation of conducting a private investigation without a
license is not probative of Agent Johnson's character for
truthfulness or untruthfulness, as would be required to
impeach him with extrinsic evidence under Federal Rule of
Evidence (“FRE”) 608(b). (See Id.
6:18-7:12). Additionally, the Government explains that there
was no promise to resolve the alleged arrest in exchange for
Agent Johnson's testimony, and the defense
“advance[d] no evidence or information” to the
contrary other than the mere suggestion. (Id.
7:12-21). Ultimately, the Government argues that “even
if a Giglio violation occurred - which it most
certainly did not - dismissal is not the appropriate
remedy.” (Id. 8:11-13). Regarding the
Henthorn allegations, the Government explains that
it “conducted a Henthorn inquiry of the personnel
records of [Agent] Johnson and its inquiry revealed no
derogatory or disciplinary action related to any agent
misconduct.” (Id. 8:21-23).
initial matter, the Court finds that Defendants failed to
meet their burden to establish a violation has occurred. The
Court is unconvinced at this point that Agent Johnson's
alleged arrest is material to the instant case, as it is
unrelated and does not appear to be probative of Agent
Johnson's character for truthfulness or untruthfulness as
would be required under FRE 608(b). Further, Defendants'
bare assertion of a possible promise to resolve the alleged
arrest in exchange for testimony without any further evidence
is also insufficient to establish any Giglio
violation. Regardless, any prejudice has clearly been negated
by the new trial already in progress. (See ECF No.
2142). As such, the Court cannot find that a
Brady/Giglio violation. See
Strickler, 527 U.S. at 281-82 (requiring that
“prejudice must have ensued”). Lastly, the Court
finds that the Government complied with their duty to inspect
Agent Johnson's personnel files under Henthorn.
Should any changes occur regarding Agent Johnson's
personnel record, the Court reminds the Government of its
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, 60 (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”); see
also Santiago, 46 F.3d at 895.
Court has found no Brady, Giglio, or
Henthorn violation, there is no evidence of any
prosecutorial misconduct, much less misconduct that could be
described as “flagrant.” See United States v.
Williams, 547 F.3d 1187, 1202 (9th Cir. ...