U.S. v. Acosta, CR-S-03-542-JCM(PAL).

• Citation: 357 F.Supp.2d 1228
• Decision Date: 31 January 2005
• Docket Number: No. CR-S-03-542-JCM(PAL).,CR-S-03-542-JCM(PAL).
• Parties: UNITED STATES of America, Plaintiff, v. Charles ACOSTA et al., Defendants.
• Court: U.S. District Court — District of Nevada

357 F.Supp.2d 1228

UNITED STATES of America, Plaintiff, v. Charles ACOSTA et al., Defendants.

No. CR-S-03-542-JCM(PAL).

United States District Court, D. Nevada.

January 31, 2005.

COPYRIGHT MATERIAL OMITTED

Eric Johnson, Esq., Chief, Organized Crime Strike Force, Andrew Duncan, Esq., Office of the United States Attorney, Las Vegas, NV, for plaintiff.

Daniel J. Albregts, Esq., Las Vegas, NV, for defendant Charles Acosta.

Kim Kruglick, Esq., Mill Valley, CA, for defendant Robert Anello.

Paul Burglin, Esq., Mill Valley, CA, for defendant Robert Anello.

Mace J. Yampolsky, Esq., Las Vegas, NV, for defendant Robert Anello.

Randall J. Roske, Esq., Las Vegas, NV, for defendant Ron Arnone.

Michael Cristalli, Esq., Las Vegas, NV, for defendant Matthew Carlock.

Mitchell Posin, Esq., Las Vegas, NV, for defendant Jeffrey Carney.

James A. Bustamante, Esq., San Francisco, CA, for defendant Matt Camach.

Ross C. Goodman, Esq., Las Vegas, NV, for defendant Rodney Cox.

Thomas C. Naylor, Esq., Henderson, NV, for defendant Steve Eades.

John L. Duffy, Esq., Las Vegas, NV, for defendant Montgomery Elliott.

Anthony Montisano, Esq., Las Vegas, NV, for defendant Maurice Eunice.

Michael Harkness, Esq., San Diego, CA, for defendant Maurice Eunice.

T. Louis Palazzo, Esq., Las Vegas, NV, for defendant Raymond Foakes.

Michael Cardoza, Esq., Walnut Creek, CA, for defendant Shawn Frazer.

Peter S. Christiansen, Esq., Las Vegas, NV, for defendant James Hannigan.

Douglas L. Rappaport, Esq., San Francisco, CA, for defendant Wayne Hodges.

William B. Terry, Esq., Las Vegas, NV, for defendant Eiland Hogan.

Osvaldo E. Fumo, Esq., Las Vegas, NV, for defendant Michael Hurn.

Scott L Bindrup, Esq., Las Vegas, NV, for defendant Charlie Hyde.

Terrence M. Jackson, Esq., Las Vegas, NV, for defendant Patrick Kalabolas.

Karen A. Connolly, Esq., Las Vegas, NV, for defendant Edward Laigo.

Brian M. Fisher, Esq., Las Vegas, NV, for defendant Dale Leedom.

Harris B. Taback, Esq., San Francisco, CA, for defendant Jesse Mahon.

John J. Momot, Esq., Las Vegas, NV, for defendant Michael Mills.

Fred H. Atcheson, Esq., Reno, NV, for defendant Jeff Morales.

Michael Pancer, Esq., San Diego, CA, for defendant Steven Pearce.

Michael Kennedy, Esq, Las Vegas, NV, for defendant Sohn Regas.

David Z. Chesnoff, Esq., Las Vegas, NV, for defendant Calvin Schaefer.

Mario D. Valencia, Esq., Henderson, NV, for defendant Donald Smith.

Alan Caplan, Esq., San Francisco, CA, for defendant Michael Smullen.

John N. McNicholas, Esq., Las Vegas, NV, for defendant William Spearman.

Robert G. Lucherini, Esq., Las Vegas, NV, for defendant David Steely.

Leo P. Flangas, Esq., Las Vegas, NV, for defendant George Walters.

Brian F. Russo, Esq., Scottsdale, AZ, for defendant John Ward.

Charles E. Kelly, Esq., Las Vegas, NV, for defendant Brian Wendt.

Richard A. Wright, Esq., Karen C. Winckler, Esq., Las Vegas, NV, for defendant Brian Wolff.

Chad A. Bowers, Esq., Las Vegas, NV, for defendant Jeff Zarate.

Robert Murdock, Esq., Las Vegas, NV, for defendant Shawn Frazer.

Jai M. Gohel, Esq., San Francisco, CA, for defendant Shawn Frazer.

Robert M. Draskovich, Esq., Las Vegas, NV, for defendant Justin Harrah.

Travis E. Shetler, Esq., Las Vegas, NV, for defendant Keith Hixon.

Anthony Sgro, Esq., Las Vegas, NV, for defendant Ricky Jenks.

Andrew Fritz, Esq., Las Vegas, NV, for defendant Daniel LaJoices.

ORDER AFFIRMING MAGISTRATE ORDER (# 561)

MAHAN, District Judge.

Before this court is the order of U.S. Magistrate Judge Leen (# 561) requiring government prosecutors to timely disclose before trial all evidence or information known that tends to negate the guilt of the accused or mitigate the offenses charged. Judge Leen's order further directs the government to make these disclosures no later than sixty (60) days before trial. The Office of the United States Attorney filed objections (# 590) to Section C and D of the order on September 19, 2004. Defendant Steven Pearce filed his reply (# 608) on October 6, 2004. The parties' arguments concerning Judge Leen's order raise two important questions of law reviewed de novo by this court. See generally United States v. Cabaccang, 332 F.3d 622 (9th Cir.2003). First, what is the scope of the government's duty to disclose exculpatory evidence before trial? Second, how are conflicts between the duty to disclose and the Jencks Act reconciled?

Scope of Pre-Trial Duty to Disclose:

"The prosecution's affirmative duty to disclose evidence favorable to a defendant can trace its origins to early 20th-century strictures against misrepresentation and is of course most prominently associated with... Brady v. Maryland, 373 U.S. 83, 86, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963)." Kyles v. Whitley, 514 U.S. 419, 432, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995). In Brady, the Supreme Court held "suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment." 373 U.S. at 87, 83 S.Ct. 1194. "Favorable" evidence under Brady encompasses both exculpatory and impeachment evidence and evidence must be both favorable and material before disclosure is required. United States v. Bagley, 473 U.S. 667, 674, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985).

All parties recognize material exculpatory evidence under Brady must be disclosed before trial, but the government urges Brady's materiality standard is the limit of the duty to disclose. This court cannot agree.

Brady and its progeny arise in a post-trial context. Specifically, these cases address after trial whether the failure to disclose favorable material evidence in violation of defendant's due process rights justifies a new trial. As United States v. Bagley, 473 U.S. 667, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985), makes clear, only suppression of evidence that cumulatively rises to the level of "material" violates defendant's due process rights. Brady's concern whether a constitutional violation occurred after trial is a different question than whether Brady is the full extent of the prosecutor's duty to disclose pretrial. Brady's materiality standard for due process violations in a post-trial context should not be used to sanction any and all conduct that does not rise to a constitutional violation of defendant's due process rights because the United States Attorney is held to a higher standard.

The United States Attorney is "the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done." Berger v. United States, 295 U.S. 78, 88, 55 S.Ct. 629, 79 L.Ed. 1314 (1935).

"This special status explains both the basis for the prosecution's broad duty of disclosure and our conclusion that not every violation of that duty necessarily establishes that the outcome was unjust. Thus, the term `Brady violation' is sometimes used to refer to any breach of the broad obligation to disclose exculpatory evidence — that is, to any suppression of so-called `Brady material' — although, strictly speaking, there is never a real `Brady violation' unless the non-disclosure was so serious that there is a reasonable probability that the suppressed evidence would have produced a different verdict." Strickler v. Greene, 527 U.S. 263, 281, 119 S.Ct. 1936, 144 L.Ed.2d 286 (1999).

Though the Supreme Court in Strickler recognized the duty to disclose is broader than the narrower question whether failure to disclose violates the Constitution, the Strickler Court did not delineate the scope of that duty. Nevada, like many states, has adopted the ABA Standards for Criminal Justice to fill this void and Nevada Supreme Court Rule ("SCR") 179(4), derived from ABA Model Rule 3.8(d), defines the scope of the duty to disclose "the prosecutor in a criminal case shall...[m]ake timely disclosure to the defense of all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigate the offense...." Nev.Sup.Ct.R. 179(4)(1986). This court has adopted the ABA standard within SCR 179(4) for pretrial disclosure through Local Rule IA 10-7(a).

Government's objections

The government argues this guideline of professional conduct, adopted as a local rule, should not be elevated to a standard of pre-trial procedure. (Government Opposition ("Opp'n") at 5.) Yet this court's local rules, regardless of origin or form regulate many aspects of pre-trial procedure and this court refuses to disregard them for that reason alone.

The government's opposition acknowledges federal prosecutors must follow the rules of professional conduct adopted by the district court, but contends these rules should not be construed "to supersede well-established Federal constitutional and statutory law, i.e., Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and its progeny, and the Jencks Act, 18 U.S.C. § 3500." (Opp'n at 3.) The government supports this contention by citing U.S. v. Coppa, 267 F.3d 132 (2nd Cir.2001); State v. Walter, 2003 WL 352628 (Conn.Super.Ct.2003); and In the Matter of Attorney C, 47 P.3d 1167, 1171 (Colo.2002). These cases are not controlling authority for this court and this court is convinced the Ninth Circuit and Supreme Court consider the ABA standards as supplementing rather than superseding Brady, statutory law, and the Jencks Act.

As the Court in Kyles v. Whitley noted, "the rule in Bagley (and, hence, in Brady) requires less of the prosecution than the ABA Standards for Criminal Justice, which call generally for prosecutorial disclosures of any evidence tending to exculpate or mitigate." Kyles, 514 U.S. at 437, 115 S.Ct. 1555. This implies the ABA standards and Brady are not mutually exclusive. Rather, the ABA Standards offer a model for pretrial disclosures, a...