United States District Court, D. Nevada
MIRANDA M. DU UNITED STATES DISTRICT JUDGE.
the Court is the government's Motion to Reconsider
(“Motion for Reconsideration”) (ECF No. 40) and
Defendant Jolene Aleck's Motion to Compel Compliance with
the Court's Order Docketed at ECF 31 (“Motion to
Compel”) (ECF No. 44). The Court has reviewed the
government's reply (ECF No. 49),  Defendant's response
(ECF Nos. 46, 48), and the parties' additional filings
(ECF Nos. 60, 61, 62, 63). The Court heard oral argument on
the motions on October 12, 2017. (ECF Nos. 58, 59.)
reasons discussed below, the Court denies the
government's Motion for Reconsideration and grants
Defendant's Motion to Compel.
indictment was issued in this case on October 5, 2016,
charging Defendant with one count of embezzlement and theft
from an Indian Tribal Organization under 18 U.S.C. §
1163. (ECF No. 1.) A superseding indictment was filed on
October 11, 2017, charging Defendant with five counts of
embezzlement and theft from an Indian Tribal Organization
under 18 U.S.C. § 1163 and one count of money laundering
under 18 U.S.C. § 1344(b). (ECF No. 55 at 1-3.) The
superseding indictment also contains an allegation for
forfeiture pursuant to 18 U.S.C. § 982(a)(1).
(Id. at 3-4.) The alleged embezzlement occurred from
about May 12, 2016, to June 3, 2016. (Id. at 1-3.)
5, 2017, Defendant moved for an order requiring the
government “to inspect the personnel files of its law
enforcement witnesses and produce all material favorable to
the defense and for . . . impeachment materials related to
[Bureau of Indian Affairs (“BIA”)] Agent Marla
Hernandez” pursuant to Brady v Maryland, 373
U.S. 83 (1963), and United States v. Henthorn, 931
F.2d 29 (9th Cir. 1991) (“Defendant's
Motion”). (ECF No. 21 at 1.) Specifically, Defendant
requested documents that “reveal instances if not a
pattern of performance-related issues that bear directly on
the integrity of the investigation in this case[.]”
(Id. at 3.) The government then filed an Ex-Parte
[sic] Motion Requesting an In Camera Review
of Giglio/Henthorn Material in Terms of any
Disclosure Obligations as they related to Hernandez (ECF No.
In the Court's order resolving these two motions, the
Court found that the materials in Hernandez's Personnel
File fell within the government's disclosure obligations
under Henthorn and directed the government to
produce the materials to Defendant. (ECF No. 31 at 2.) Based
on that ruling, the Court denied Defendant's Motion as
government subsequently filed a Motion to Reconsider, in
which it informed the Court that it had decided as a matter
of prosecutorial discretion not to call Hernandez to testify
at trial. (ECF No. 40 at 2.) Because Henthorn's
disclosure obligations ensue from
Brady/Giglio evidence relating to
testifying witnesses, the government reasoned that
the portion of the Court's order directing it to produce
Hernandez's Personnel File is no longer applicable.
(Id.) Defendant has also filed a motion to compel
the production of Hernandez's Personnel File in
compliance with the Court's order. (ECF No. 44.)
MOTION FOR RECONSIDERATION (ECF No. 40)
light of the government's contention that it no longer
plans to call Hernandez to testify, the Court is presented
with a change in facts warranting reconsideration of its
prior order. See Ramser v. Laielli, No.
15-CV-2018-CAB-DHB, 2017 WL 3524879, at *2 (S.D. Cal. Aug.
15, 2017) (“[a] litigant should not shy from bringing
to the Court's attention changes in facts and
circumstances that render a ruling no longer logical”)
(quoting Strobel v. Morgan Stanley Dean Witter, No.
04CV1069 BEN(BLM), 2007 WL 1053454, at *3-4 (S.D. Cal. Apr.
10, 2007)); see also Snyder v Dep't of Defense,
No. C-03-4992 VRW, 2005 WL 1796228, at *2 (N.D. Cal. July 27,
2005) (holding that the court would not grant plaintiff leave
to file a motion for reconsideration where the plaintiff
failed to posit a material change in fact or law subsequent
to the court's order). This change in facts similarly
affects the Court's consideration of Defendant's
Motion, which argues that Hernandez's personnel materials
must be disclosed under Brady. Thus, because
Hernandez's Personnel File is no longer discoverable
pursuant to Henthorn, the Court must resolve the
remaining issue of whether Brady alone requires the
disclosure of Hernandez's Personnel File. The Court finds
that it does.
Brady, the government has a duty to disclose
evidence favorable to the accused that is material to her
guilt or punishment irrespective of good or bad faith on the
part of the prosecution. Brady, 373 U.S. at 87-88.
Whether a piece of evidence is material turns on whether
there is a reasonable probability-a probability that is
“sufficient to undermine confidence in the
outcome”-that, had the evidence been disclosed to the
defense, the result would have been different. United
States v. Bagley, 473 U.S. 667, 682 (1985). Moreover,
“[e]ven in the absence of a specific request, the
prosecution has a constitutional duty to turn over
exculpatory evidence that would raise a reasonable doubt
about the defendant's guilt.” California v.
Trombetta, 467 U.S. 479, 485 (1984) (citing United
States v Agurs, 427 U.S. 97, 112 (1976)). Evidence is
material not only when it tends to exculpate a defendant or
reduce the penalty of her punishment but also where it
enables a defendant to put on an effective defense. See
id. at 486 (citing United States v. Lovasco,
431 U.S. 783 (1977) and United States v.
Valenzuela-Bernal, 458 U.S. 858, 873 (1982)). The
question, therefore, is whether failure to provide Defendant
with Hernandez's Personnel File will hamper her ability
to put on a meaningful defense.
Defendant's Proposed Defenses
proffers three defenses related to the integrity of the
investigation- Hernandez's bias, lack of ethics or
integrity, and lack of credibility. (ECF No. 46 at 5; ECF No.
58.) Because Defendant is entitled to effectively attack
Hernandez's investigation, she argues that
Hernandez's Personnel File must be disclosed. The Court
agrees but finds ...