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United States v. Aleck

United States District Court, D. Nevada

October 25, 2017

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

          AMENDED ORDER [1]

          MIRANDA M. DU, UNITED STATES DISTRICT JUDGE.

         I. SUMMARY

         Before 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), [2] Defendant's response (ECF Nos. 46, 48[3]), 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.)

         For the reasons discussed below, the Court denies the government's Motion for Reconsideration and grants Defendant's Motion to Compel.

         II. BACKGROUND

         An 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.)

         On May 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. 22).[4] 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 moot. (Id.)

         The 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.)

         III. MOTION FOR RECONSIDERATION (ECF No. 40)

         In 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.

         A. Brady Obligations

         Under 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.

         B. Defendant's Proposed Defenses

         Defendant 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 ...


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