United States v. Lacey

• Decision Date: 26 June 2020
• Docket Number: No. CR-18-00422-001-PHX-SMB,CR-18-00422-001-PHX-SMB
• Parties: United States of America, Plaintiff, v. Michael Lacey, et al., Defendants.
• Court: U.S. District Court — District of Arizona

United States of America, Plaintiff, v. Michael Lacey, et al., Defendants.

No. CR-18-00422-001-PHX-SMB

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

June 26, 2020

ORDER

Pending before the Court is Defendants' Motion to Compel Production of Brady Material.¹ (Doc. 777, "Mot." or "Motion".) The Government responded, (Doc. 810, "Resp."), and Defendants replied, (Doc. 825, "Reply"). Defendants requested oral argument, but the Court elects to resolve the motion without it. See L.R. Civ 7.2(f). After considering the motions, their attached exhibits, and relevant case law, the Court enters the following Order:

I. BACKGROUND

Defendants are former officers, executives, and employees of Backpage.com, a classified advertisement website that specialized in "adult" services and largely served as a forum for soliciting prostitution.² (See generally Doc. 230, "Superseding Indictment" or "SI".) On July 25, 2018, a federal grand jury returned a 100-count Superseding Indictmentagainst Defendants alleging their commission of numerous criminal acts—conspiracy, violations of the Travel Act, and money laundering—in the operation of Backpage.com ("Backpage").³

The instant dispute is far from fresh. Defendants' Motion relates to a previous order issued by the Honorable Steven P. Logan, United States District Judge of the District of Arizona. (Doc. 339, "J. Logan Order".) At core, that order concerned Defendants' attempt to compel the Government to sift through voluminous, previously disclosed discovery, and furnish Defendants with an itemized list of exculpatory documents pursuant to Brady v. Maryland, 373 U.S. 83, 87 (1963) and Giglio v. United States, 405 U.S. 150, 154 (1972). (Id. at 1-2.) After reviewing the relevant precedent, Judge Logan concluded that the Government was "under no obligation to identify Brady or Giglio material within voluminous discovery" and denied the motion. (Id. at 5.) In so doing, Judge Logan reminded the Government to abide by earlier stipulations and "turn over any Brady/Giglio material it comes across in the future to Defendants within 10 days." (Id. at 6.) That order did not end the parties' disagreements over what Brady required. In subsequent correspondence with the Government, Defendants identified thirty-one (31) categories of information they believed the Government was required to disclose to satisfy its obligations under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1969) and Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972). (Mot., Ex. 1.) Unsatisfied with the Government's response, Defendants sought the Court's intervention and filed the current motion.

II. LEGAL STANDARD

As a general rule, a defendant has no constitutional right to discovery in a criminal case. Weatherford v. Bursey, 429 U.S. 545, 559, 97 S.Ct. 837, 51 L.Ed.2d 30 (1977). But under Brady v. Maryland and its progeny, a prosecutor has an obligation, imposed by the Due Process Clause, to disclose "evidence favorable to an accused upon request . . . where the evidence is material either to guilt or to punishment." 373 U.S. 83, 87, 83 S.Ct. 1194.Favorable evidence is "any evidence" that "tend[s] to call the government's case into doubt" including "both exculpatory and impeachment material that is relevant to either guilt or punishment." Milke v. Ryan, 711 F.3d 998, 1012 (9th Cir. 2013) (citing Strickler v. Greene, 527 U.S. 263, 280, 119 S.Ct. 1936, 144 L.Ed.2d (1999)). The failure to disclose such evidence violates due process "irrespective of the good faith or bad faith of the prosecution." Strickler, 527 U.S. at 280, 119 S.Ct. 1936 (quoting Brady, 373 U.S. at 87). "[E]vidence is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different."⁴ United States v. Cano, 934 F.3d 1002, 1022 (9th Cir. 2019) (quoting United States v. Bagley, 473 U.S. 667, 682, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985).

Unlike other discovery obligations,⁵ the duty to disclose Brady material is an affirmative, self-executing duty that exists irrespective of a defendant's request. Paradis v. Arave, 240 F.3d 1169, 1176 (9th Cir. 2001) (citing United States v. Bagley, 473 U.S. 667, 682 (1985)). But Brady does not oblige the government "to produce information which it does not possess or of which it is unaware." Sanchez v. United States, 50 F.3d 1448, 1453 (9th Cir. 1995). Nor does it require the government to open its files merelybecause a defendant requests or "permit a defendant to sift through information held by the government to determine materiality." United States v. Lucas, 841 F.3d 796, 807 (9th Cir. 2016); see also Weatherford v. Bursey, 429 U.S. 545, 559, 97 S.Ct. 837 ("There is no general constitutional right to discovery in a criminal case, and Brady did not create one."). Instead, Brady imposes a duty on the government to turn over only material, exculpatory or otherwise helpful to the defense, in its possession.⁶ "Possession," however, is not limited to a prosecutor's personal knowledge. Browning v. Baker, 875 F.3d 444, 460 (9th Cir. 2017), cert. denied, — U.S.— , 138 S.Ct. 2608, 201 L.Ed.2d 1014 (2018); United States v. Bryan, 868 F.2d 1032, 1036 (9th Cir. 1989). That is because prosecutors' "unique position to obtain information known to other agents of the government," obliges them to "disclos[e] what [they] do not know but could have learned. Carriger v. Stewart, 132 F.3d 463, 480 (9th Cir. 1997) (en banc); see also Kyles v. Whitley, 514 U.S. 419, 437, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995) (describing the individual prosecutors "duty to learn of any favorable evidence known to [those] acting on the government's behalf"). This requirement extends to information held by subordinates, see Kyles, 514 U.S. at 438; United States v. Price, 566 F.3d 900, 908-09 (9th Cir. 2009), and at times, information held by other executive branch agencies, see United States v. Santiago, 46 F.3d 885, 893 (9th Cir. 1995); United States v. Jennings, 960 F.2d 1488, 1490-91 (9th Cir. 1992). Ultimately, these duties are unequivocally the Government's alone. "It is the government, not the defendant or the trial court, that decides prospectively what information, if any, is material and must be disclosed under Brady." Lucas, 841 F.3d at 807 (emphasis in original).

III. DISCUSSION

Defendants accuse the Government of withholding approximately forty-two separate categories of Brady material. Outside of rehashing a dormant discovery dispute, Defendants argue (1) that the Government misunderstands its Brady obligations in thecontext of a pretrial request; (2) that its obligations require disclosure of materials in possession of the National Center for Missing and Exploited Children ("NCMEC"); and (3) the Attorneys General of California and Texas— organizations that they argue function as an arm of the government. (Mot. at 14-17.)

Before parsing Defendants individual claims, the Court briefly addresses the circumstances underlying this Motion and the effects of resolution of other discovery disputes on the Motion. First, as a procedural matter, the Motion violates orders of this Court. In August 2018, Defendant Padilla moved to compel the government to furnish Defendants with an itemized list identifying specific Brady and Giglio materials within the Government's voluminous production of discovery materials. As discussed previously, by that time the Government's discovery productions were extensive, (see generally Doc. 294),⁷ and the Court subsequently affirmed that the Government had no obligation to itemize Brady and Giglio material. (Doc. 339 at 5-6.) Since then, the Government has disclosed vast amounts of additional material in more functional format. Discovery disputes in this case have been numerous, constant, and consuming—to date, the Court has considered seven separate motions to compel, (see e.g. Docs. 352, 400, 643, 662, 665, 740, 777), and their associated responsive motions. To better manage the emergent discovery disputes, the Court assumed a more active role in managing discovery and, in an August 19, 2019 motions hearing, (considering Doc. 679, "Motion for Sanctions", Doc. 561, "Motion to Dismiss", Docs 662, 665 "Motions to Compel," and Doc. 531, "Motion for Discovery"), the Court expressly "prohibit[ed] the parties from filing any further motions to compel or motions for discovery until the parties contact the Court to discuss," (Doc. 728 at 2)—a prohibition Defendants ignored entirely in filing the instant Motion.⁸ The imposition of sanctions, to include possible dismissal of Defendants' Motion, is justified on this ground alone. See State Farm Fire and Cas. Co. v. ex rel. Rigsby, 137 S.Ct. 436,444, 196 L.Ed.2d 340, 85 USLW 4011 (2016) ("District courts have inherent power, moreover, to impose sanctions short of dismissal for violations of court orders.") (citing Chambers v. NASCO, Inc., 501 U.S. 32, 43-46, 111 S.Ct. 2123, 115 L.Ed.2d 27 (1991). Without condoning their documented disregard for this Court's instructions, the Court nonetheless considers the merits of Defendants' arguments to ensure that this issue is not further delayed.

Second, many of Defendants' requests are now moot.⁹ Defendants also seek production of "any and all witnesses, documents and information" along three broad categories: (1) Backpage ads reported to NCMEC; (2) exculpatory information relating to Backpage's moderation practices and alleged mens rea; and (3) information related to user posts (or attempts) of lawful adult categories. (See Mot. at 9.) The Court finds those requests satisfied by Government disclosures subsequent to the filing of this Motion. (See Doc. 839.) Much of the material requested by the Motion is either currently impossible to produce or material that Defendants now possess. For example, Defendants request for disclosure of every ad ever posted on Backpage is largely moot. (See Mot. at 8-9.) Because Backpage...