United States District Court, D. Nevada
ORDER (MOT. SPECIFIC DISCOVERY - ECF NO. 155; MOTS.
JOINDER - ECF NOS. 158, 165)
A. LEEN, UNITED STATES MAGISTRATE JUDGE.
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).
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. 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.
. 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.
trial in this case is currently set for October 29, 2018.
Order (ECF No. 174).
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
The Government's Constitutional Duty of
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. “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).
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)).
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).
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.
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.”
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.
The Jencks Act and Rule 26.2
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).
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
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