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United States v. Correia

United States District Court, D. Nevada

July 9, 2018

BRUNO MACEDO CORREIA, et al., Defendants.

          ORDER (ECF NOS. 280, 281, 282)


         Before the court is defendant Bruno Correia's Motion to Compel Production of Information, Material and Documents in Possession of the United States (ECF No. 280), filed April 27, 2018, the government's response (ECF No. 309), filed May 29, 2018, and Correia's reply (ECF No. 328), filed June 5, 2018. Defendant Francisco Filho joined the motion (ECF No. 281) on April 27, 2018, and defendant Andre Araujo Rodrigues joined the motion (ECF No. 282) on April 27, 2018.

         I. BACKGROUND

         This case arises out of a conspiracy among numerous Brazilian nationals to commit credit card fraud throughout the United States. On January 3, 2017, a grand jury returned an indictment charging defendant Bruno Macedo Correia with the following crimes: Count 1 - Conspiracy to Commit Fraud and Related Activity in Connection with Access Devices (18 U.S.C. § 1029(b)(2)); and Count 29 - Conspiracy to Commit Money Laundering (18 U.S.C. § 1956(h)).

         This broad-ranging motion requests numerous categories of discovery, most of which are governed by well-known cases and statutes which establish self-executing disclosure obligations of the government. Correia's counsel claims the motion is necessary because of a recent finding of discovery violations in an unrelated case in this district. The government responds that it is aware of its discovery obligations, and has provided extensive discovery.


         A. Meet-and-confer obligation

         Under LCR 16-1(c), a motion for discovery must contain a statement certifying that, after personal consultation, the movant has been unable to resolve the dispute without court action. A breach of the duty to meet and confer, by either party, may serve as a basis to grant or deny any subsequent motion for appropriate relief made before the court. Given the breadth of the requests, it does not appear that Correia's counsel made a sincere effort to meet and confer to try to narrow discovery issues before filing this motion. See LR IA 1-3(f) (defining meet and confer).[1] Additionally, considering the government's responses to particular requests, it does not appear that Correia's counsel is familiar with the discovery which has been provided. Nevertheless, the court will address the requests.

         B. Applicable standards

         Rule 16(a)(1)(E) of the Federal Rules of Criminal Procedure entitles a defendant to inspect and copy tangible things in the Government's possession, custody, or control, such as books, papers, documents, etc., provided: (1) the item is material to preparing the defense; (2) the government intends to use the item in its case-in-chief at trial; or (3) the item was obtained from or belongs to the defendant. “‘[T]o obtain discovery under Rule 16, a defendant must make a prima facie showing of materiality.'” United States v. Lucas, 841 F.3d 796, 804 (9th Cir. 2016) (citations omitted). This “threshold showing of materiality… requires a presentation of ‘facts which would tend to show that the Government is in possession of information helpful to the defense.'” United States v. Santiago, 46 F.3d 885, 894 (9th Cir. 1995) (quoting United States v. Mandel, 914 F.2d 1215, 1219 (9th Cir.1990)). Although the materiality threshold is “low, ” “[n]either a general description of the information sought nor conclusory allegations of materiality suffice[.]” Id. at 804 (quoting Mandel, 914 F.2d at 1219); see also Id. at 894-95.

         As a general proposition, there is no constitutional right to discovery in a criminal case. Weatherford v. Bursey, 429 U.S. 545, 559 (1997). However, the government has a constitutional duty to disclose exculpatory material pursuant to Brady v. Maryland, 373 U.S. 83, 87 (1963). The Supreme Court has also held that the government must disclose impeachment evidence, including all promises, inducements, or threats made to a witness in order to gain the cooperation of that witness in the investigation or prosecution of the defendant. Giglio v. United States, 405 U.S. 150, 154 (1972). The Brady/Giglio doctrine does not require the government to disclose neutral, irrelevant, speculative or inculpatory evidence. See, e.g., U.S. v. Stinson, 647 F.3d 1196, 1208 (9th Cir. 2011). Evidence is material under Brady if there is a reasonable probability that, if the government had disclosed the evidence to the defendant, the result of the proceeding would have been different. See United States v. Bagley, 473 U.S. 667, 681 (1985); see also United States v. Acosta, 357 F.Supp.2d 1228, 1243 (D. Nev. 2005) (materiality standard governs pretrial requests for Brady disclosure). Although Brady should be interpreted broadly to encourage prosecutors to carry out their duty, it does not require the government to disclose every scrap of evidence that could conceivably benefit a defendant. See, e.g., Moore v. Illinois, 408 U, S. 786, 795 (1972) (“We know of no constitutional requirement that the prosecution make a complete and detailed accounting to the defense of all police investigatory work on a case.”).

         A defendant's allegation that the requested information might be material does not entitle him or her to an unlimited or unsupervised search of the government's files. See Pennsylvania v. Ritchie, 480 U.S. 39, 59 (1987). The government alone determines which information must be disclosed pursuant to Brady, and this decision is final. Id. The Supreme Court has cautioned the government not to “tack too close to the wind” in determining whether material is exculpatory, and therefore should be produced. Kyles v. Whitley, 514 U.S. 419, 439 (1995). However, the government has the responsibility to make judgment calls about what qualifies as “favorable evidence” and whether certain evidence is “favorable” depends on the context of the existing or potential evidentiary record. Id. The prosecutor is a representative of the government whose interests in criminal prosecution is not “that it shall win a case, but that justice shall be done.” Id. (internal quotations and citations omitted). Therefore, “the prudent prosecutor will resolve doubtful questions in favor of disclosure.” Id.

         In order to provide for full and fair cross-examinations, the Jencks Act requires the United States to provide the defense with any statements made by a witness relating to his or her testimony after that witness has testified on direct examination. 18 U.S.C. § 3500. A statement for the purposes of the Jencks Act is:

(1) a written statement made by said witness and signed or otherwise adopted or approved by him; (2) a stenographic, mechanical, electrical, or other recording, or a transcription thereof, which is substantially verbatim recital of an oral statement made by said witness and recorded contemporaneously with the making of such oral statement; or (3) a statement, however taken ...

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