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United States v. Galecki

United States District Court, D. Nevada

July 6, 2018

UNITED STATES OF AMERICA, Plaintiff,
v.
BENJAMIN GALECKI, Defendant.

          ORDER (MOT. SPECIFIC DISCOVERY - ECF NO. 155; MOTS. JOINDER - ECF NOS. 158, 165)

          PEGGY A. LEEN, UNITED STATES MAGISTRATE JUDGE.

         Before the court is Defendant Benjamin Galecki's Motion for Specific Discovery (ECF No. 155). This Motion is referred to the undersigned pursuant to 28 U.S.C. § 636(b)(1)(A) and LR IB 1-3 of the Local Rules of Practice. The court has considered the Motion, the Government's Response (ECF No. 185), and Ritchie's Reply (ECF No. 200), as well as co-defendants Charles Burton Ritchie and Ryan Matthew Eaton's Motions for Joinder (ECF Nos. 158, 165).

         BACKGROUND

         This case involves the government's allegations that Galecki and his co-defendants manufactured and distributed controlled substances and controlled substance analogues (“analogues”), committed mail and wire fraud, and engaged in illegal financial transactions with the proceeds from their drug operations. Supers'g Indict. (ECF No. 56). The defendants' “smokable synthetic cannabinoid products” (i.e., “spice”) contained the alleged analogues and controlled substances XLR11 a/k/a 5F-UR-144 (“XLR11”) and AM2201. Id. ¶¶ 3, 10.[1] As relevant to the current motion, defendants are charged in seven counts alleging violations of the Controlled Substance Act, 21 U.S.C. §§ 801-971, and the Controlled Substance Analogue Enforcement Act (“Analogue Act”), 21 U.S.C. § 813:

. Count Twenty - Conspiracy to manufacture, possess with intent to distribute, and distribute a controlled substance and a controlled substance analogue to the extent intended for human consumption in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(C) and 846.
. Count Twenty-One - Possession with intent to distribute a controlled substance and a controlled substance analog to the extent intended for human consumption in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C) and 18 U.S.C. § 2.
. Count Twenty-Two - Conspiracy to manufacture, possess with intent to distribute, and distribute a controlled substance analogue intended for human consumption in violation of 21 U.S.C. §§ 802(32)(A), 813, 841(a)(1), 841(b)(1)(C) and 846.
. Count Twenty-Three - Manufacture a controlled substance analogue to the extent intended for human consumption in violation of 21 U.S.C. §§ 802(32)(A), 813, 841(a)(1), 841(b)(1)(C), and 18 U.S.C. § 2.
. Count Twenty-Four - Distribution of a controlled substance analogue in violation of 21 U.S.C. §§ 802(32)(A), 813, 841(a)(1), 841(b)(1)(C), and 18 U.S.C. § 2.
. Count Twenty-Five - Maintaining a drug-involved premises in violation of 21 U.S.C. § 856(a)(1) and 18 U.S.C. § 2.
. Count Twenty-Six - Possession of a listed chemical with the intent to manufacture a controlled substance analogue intended for human consumption in violation of 21 U.S.C. § 841(c) and 18 U.S.C. § 2.

         The trial in this case is currently set for October 29, 2018. Order (ECF No. 174).

         DISCUSSION

         I. Legal Standards

         As a general rule, a defendant has no constitutional right to discovery in a criminal case. Weatherford v. Bursey, 429 U.S. 545, 559 (1977) (“There is no general constitutional right to discovery in a criminal case.”). However, the Supreme Court has held that the prosecution has a constitutional duty under the due process clause to disclose material exculpatory information, including evidence bearing on the credibility of government witnesses. E.g., Kyles v. Whitley, 514 U.S. 419 (1995); United States v. Bagley, 473 U.S. 667 (1985); Giglio v. United States, 405 U.S. 150 (1972); Brady v. Maryland, 373 U.S. 83 (1963). Additionally, a defendant is entitled to limited discovery under the Jencks Act, 18 U.S.C. § 3500, and Rules 12.1, 16, and 26.2 of the Federal Rules of Criminal Procedure.[2]

         A. The Government's Constitutional Duty of Disclosure

         In Brady v. Maryland, the Supreme Court held that the Due Process Clause requires the government to disclose upon request “evidence favorable to an accused” where the evidence is “material either to guilt or punishment.” 373 U.S. at 87. The Supreme Court later held that the government has a duty to disclose material favorable information even in the absence of a defense request. Bagley, 473 U.S. at 682; Kyles, 514 U.S. at 433.[3] “Any evidence that would tend to call the government's case into doubt is favorable, ” i.e., exculpatory. Milke v. Ryan, 711 F.3d, 998, 1012 (9th Cir. 2013). Giglio extended the government's disclosure obligation to impeachment evidence. 405 U.S. at 154-55. A witness' prior statements that are both material and inconsistent with anticipated trial testimony are Brady material. United States v. Hanna, 55 F.3d 1456, 1459 (9th Cir. 1995). Evidence impugning the testimony of a witness critical to the prosecution's case “is especially likely to be material” for Brady purposes. United States v. Sedaghaty, 728 F.3d 885, 902 (9th Cir. 2013). Disclosure of Brady material should generally occur before trial. United States v. Nagra, 147 F.3d 875, 881 (9th Cir. 1988). It must be made at a time when it would be of value to the accused. United States v. Aichele, 941 F.2d 761, 764 (9th Cir. 1991).

         Brady and Giglio impose obligations not only on the prosecutor, but on the government as a whole. United States v. Blanco, 392 F.3d 382, 394 (9th Cir. 2004). Thus, a prosecutor is deemed to have knowledge of and access to any Brady and Giglio material in the possession, custody, or control of any federal agency participating in the same investigation of the defendant. United States v. Ross, 372 F.3d 1097, 1111 (9th Cir. 2004). As such, the prosecutor is required to turn over exculpatory evidence that is known to an investigating agency, even if the prosecutor does not possess the information. Blanco, 392 F.3d at 394. This is because the “prosecution is in a unique position to obtain information known to other agents of the government.” Id. at 388 (quoting Carriger v. Stewart, 132 F.3d 463, 480 (9th Cir. 1997)).

         The government's disclosure obligations under Brady and Giglio apply only to material and favorable evidence. United States v. Ruiz, 536 U.S. 622, 629 (2002) (noting that “the Constitution does not require the prosecutor to share all useful information with the defendant”). Although Brady should be interpreted broadly to encourage prosecutors to carry out their constitutional disclosure duties, it does not require the government to disclose every scrap of evidence that could conceivably benefit a defendant. Moore v. Illinois, 408 U.S. 786, 795 (1972). The defendant is not entitled “to know about information which would help solidify the government's case.” United States v. Barker, 988 F.2d 77, 79 (9th Cir. 1993).

         The government has the responsibility to make judgment calls about what qualifies as “favorable evidence” subject to disclosure under Brady and its progeny, and whether certain evidence is “favorable” depends on the context of the existing or potential evidentiary record. Kyles, 514 U.S. at 439. The prosecutor's decision is final. Pennsylvania v. Ritchie, 480 U.S. 39, 59 (1987). However, the Supreme Court has cautioned the government not to “tac[k] too close to the wind.” Kyles, 514 U.S. at 439. The prosecutors are representative of the government whose interest in a criminal prosecution is “not that it shall win a case, but that justice shall be done.” Id. (internal quotation omitted). Therefore, “the prudent prosecutor will resolve doubtful questions in favor of disclosure.” Id.; United States v. Soto-Zuniga, 837 F.3d 992, 1003 (9th Cir. 2016).

         B. Rule 16

         Rule 16 gives criminal defendants a limited right to discovery and requires the government to disclose, upon request, information within the government's possession, custody, or control that is material to preparing a defense. United States v. Stever, 603 F.3d 747, 752 (9th Cir. 2013) (quoting Fed. R. Crim. P. 16(a)(1)(E)(i)). Rule 16 requires disclosure of information that, although not exculpatory or impeaching, may be relevant to developing a possible defense. United States v. Muniz-Jaquez, 718 F.3d 1180, 1183 (9th Cir. 2013). Thus, the rule imposes broader disclosure obligations on the government than Brady. Id. The government's obligations under Rule 16 also impose a continuing duty to disclose evidence prior to or during trial. United States v. Mikaelian, 168 F.3d, 380, 389 (9th. Cir. 1999). However, the Advisory Committee's note to the 1975 amendments to Rule 16 make it clear that “the rule is intended to prescribe the minimum amount of discovery to which the parties are entitled.”

         Effective December 1, 2013, Rule 16(a)(2) was amended to correct a “scrivener's error” and clarify information that is not subject to disclosure. Notably, discovery or inspection of reports, memoranda or other internal government documents made by a government attorney or other government agent investigating or prosecuting the case are not discoverable, except as permitted in Rule 16(a)(1)(A) through (D), (F) and (G). Fed. R. Crim. P. 16(a)(2). The rule also clarifies that statements made by prospective government witnesses are not discoverable except as provided in the Jencks Act. Id.

         C. The Jencks Act and Rule 26.2

         The Jencks Act, 18 U.S.C. § 3500, governs demands for production of statements and reports of witnesses. It requires the government to produce all prior relevant statements of a witness after the government has called the witness to testify on direct examination:

After a witness called by the United States has testified on direct examination, the court shall, on motion of the defendant, order the United States to produce any statement (as hereinafter defined) of the witness in the possession of the United States which relates to the subject matter as to which the witness has testified….

18 U.S.C. § 3500(b) (emphasis added).

         The Ninth Circuit has observed that Rule 26.2 “basically implements the Jencks Act.” See United States v. Riley, 189 F.3d 802, 805 (9th Cir. 1999). It provides:

After a witness other than the defendant has testified on direct examination, the court, on motion of a party who did not call the witness, shall order the attorney for the government or the defendant and the defendant's attorney, as the case may be, to produce, for the examination and use of the moving party, any statement of the witness that is in their ...

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