United States v. Toilolo
| Decision Date | 17 March 2014 |
| Docket Number | CR. NO. 11-00506 LEK |
| Parties | UNITED STATES OF AMERICA, Plaintiff, v. FOUINA C. TOILOLO, (01) ALOALII TOOTOO, (02) KAISA TAI, (03) HARRY AKANA, (07) DANIEL FOLA, (08) WALTER DOMINGUEZ, (10) Defendants. |
| Court | U.S. District Court — District of Hawaii |
On December 20, 2013, Defendants Fouina C. Toilolo ("Toilolo"), Aloalii Tootoo ("Tootoo"), Kaisa Tai ("Tai"), Harry Akana ("Akana"), Daniel Fola ("Fola"), and Walter Dominguez ("Dominguez") (collectively "Defendants") filed their Joint Motion for Dismissal with Prejudice Due to the Government's Repeated and Continuing Discovery Abuses and Violations ("Motion to Dismiss"). [Dkt. no. 793.] Akana filed his Supplemental Memorandum in Support on December 23, 2013. [Dkt. no. 801.] Plaintiff the United States of America ("the Government") filed its memorandum in opposition on December 30, 2013. [Dkt. no. 813.] Defendants filed their joint reply memorandum ("JointReply") on January 2, 2014. [Dkt. no. 817.] Tai filed his counsel's declaration on January 3, 2014, and his joinder in the Joint Reply on January 6, 2014. [Dkt. nos. 819, 821.] Dominguez filed his supplemental memorandum on January 2, 2014,1 [dkt. no. 816,] and Toilolo and Tootoo jointly filed a supplemental memorandum on January 7, 2014 [dkt. no. 823]. This matter came on for hearing on January 6 and January 8, 2014.
After careful consideration of the supporting and opposing memoranda, the exhibits, the arguments of counsel, and applicable law, this Court orally outlined its decision following oral argument, with the express statement that the Court's written order would supercede its oral ruling. For the reasons set forth more fully below, the Motion to Dismiss is HEREBY GRANTED IN PART AND DENIED IN PART.
A lawyer's obligations are set out in the profession's code of conduct. At its essence, being a lawyer means representing clients vigorously and loyally. A prosecutor however is charged with much more -- shouldering the compelling duty to make sure that justice is done. See Berger v. United States, 295 U.S. 78, 88 (1935), overruled on other grounds byStirone v. United States, 361 U.S. 212 (1960). "The prosecutor's job isn't just to win, but to win fairly, staying well within the rules." United States v. Kojayan, 8 F.3d 1315, 1323 (9th Cir. 1993) (citations omitted).
On October 28, 2013, a final pretrial conference was held with the magistrate judge and, among other things, deadlines were ordered, including:
The United States shall complete its production of evidence favorable to the Defendant on the issue of guilt or punishment, as required by Brady v. Maryland, 373 U.S. 83 (1963) and related authorities and impeachment material, cooperation agreements, plea agreements, promises of leniency and records of criminal convictions, required by Giglio v. United States, 405 U.S. 150 (1972) and is progeny defendants [sic] herein by October 30, 2013. The United States is under a continuing obligation to produce Brady and Giglio material which may come into its possession right through the trial of this matter.
[Report of Final Pretrial Conference, Minutes & Order, filed 10/29/13 (dkt. no. 584), at 4.]
The instant case was reassigned to this Court on November 5, 2013. [Dkt. no. 610.] Jury selection commenced on November 19, 2013, and the jury trial began on November 22, 2013.
From almost the moment that this case was first reassigned, repeated charges of discovery abuse and lack of diligence were lodged against the Government. This Court has made various rulings regarding these charges, including: imposinga cut-off date of October 30, 2013 for the disclosure of discovery; [Minute Order, filed 11/21/13 (dkt. no. 719);] limiting witnesses and exhibits to those disclosed on or before October 30, 2013; [Order Granting in Part and Denying in Part Defendant Toilolo's Motion to Strike Certain Witnesses Disclosed in United States' Witness List, filed 11/22/13 (dkt. no. 720);] and not permitting the Government to use transcripts of recorded conversations until Defendants had the opportunity to have their expert review the translations and to bring any objectionable portions before the Court [Order Granting in Part and Denying in Part Defendant Tootoo's Motion in Limine to Exclude English Language Translations of Foreign Language Recordings, filed 11/22/13 (dkt. no. 721)].
Even with the rulings, Defendants continued to object to various other matters and to allege additional discovery abuse. As a result, this Court directed Defendants to file an omnibus motion seeking sanctions for discovery violations by December 20, 2013. Defendants, in response, filed the instant motion.
In their Motion to Dismiss, Defendants provide a litany of complaints regarding the Government's failure to produce discovery in a timely manner and in accordance with court-ordered deadlines. Defendants argue that the Government's actions merit a finding that its actions were flagrant and in bad faith. Inshort, Defendants submit that the only meaningful sanction for the sheer number and importance of the Government's repeated failures is dismissal of all criminal charges against Defendants with prejudice.
The Government, while conceding that it "has been negligent in complying with its discovery obligations[,]" [Mem. in Opp. at 8,] responds that dismissal of an indictment is a severe and drastic sanction that is generally disfavored, and that this Court should consider a less drastic remedy which is proportional to the violation. Further, it submits that Defendants cannot demonstrate either that they have suffered substantial prejudice as a result of the Government's failure or that less drastic remedies are not available.
Defendants argue that the Government was required but failed to produce discovery pursuant to Brady v. Maryland, 373 U.S. 83, 87 (1963), Giglio v. United States, 405 U.S. 150, 154-55 (1972), the Jencks Act ("Jencks"), and Fed. R. Crim. P. 16. To establish a Brady violation, three elements - favorability, suppression, and materiality - must be shown. That is, "[t]he evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching; that evidence must have been suppressed by the State, either willfully or inadvertently; and prejudice must have ensued." United Statesv. Olsen, 704 F.3d 1172, 1181 (9th Cir. 2013) (alteration in original) (citations and quotation marks omitted). Suppression may be either intentional or inadvertent, and even "[a]n innocent failure to disclose favorable evidence constitutes suppression . . . ." Id. at 1182 (citations omitted). Evidence is prejudicial "'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.'" United States v. Kohring, 637 F.3d 895, 902 (9th Cir. 2011) (quoting United States v. Bagley, 473 U.S. 667, 682, 105 S. Ct. 3375, 87 L. Ed. 2d 481 (1985)).
A Giglio violation occurs where the prosecution suppresses evidence that impeaches a witness's credibility. Giglio, 405 U.S. at 154. To establish a Giglio violation, the same three elements necessary for a Brady violation must be shown. Kohring, 637 F.3d at 901.
Materiality, the third element of a Brady/Giglio violation, can be the most elusive. "For the purpose of Brady/Giglio, 'material' and 'prejudicial' have the same meaning." Id. at 902 n.1 (citation omitted). Materiality is shown where there is "a 'reasonable probability' of prejudice when suppression of evidence 'undermines confidence in the outcome of the trial.'" Id. at 902 (quoting Kyles v. Whitley, 514 U.S. 419, 434, 115 S. Ct. 1555, 131 L. Ed. 2d 490 (1995)).
Jencks requires the government to produce, upon demand and after a government witness has testified at trial, any "statement" made by the witness in the government's possession that relates to the subject matter of the witness's testimony. 18 U.S.C. § 3500. The term "statement" means:
Id. § 3500(e)(1)-(3). The purpose of Jencks is to give "criminal defendants a fair opportunity to impeach government witnesses." United States v. Pisello, 877 F.2d 762, 768 (9th Cir. 1989).
Discovery in federal criminal cases is generally governed by Fed. R. Crim. P. 16. Rule 16 is broader than Brady, "requiring disclosure of all documents 'material to preparing the defense.'" United States v. Muniz-Jaquez, 718 F.3d 1180, 1183 (9th Cir. 2013) (quoting Fed. R. Crim. P. 16(a)(1)(E)(i)). Rule 16(a)(1)(E) provides for the production of discovery, upon a defendant's request. It directs:
"Evidence is 'material' under Rule 16 if it is helpful to the development of a possible defense." United States v. Budziak, 697 F.3d 1105, 1111-12 (9th Cir. 2012) (citing United States v. Olano, 62 F.3d 1180, 1203 (9th Cir. 1995)), cert. denied, 133 S. Ct. 1621 (2013). The government is...
To continue reading
Request your trial