10-03-2016 ECF 749 USA V Steven Stewart - Motion To Compe
10-03-2016 ECF 749 USA V Steven Stewart - Motion To Compe
1
2
3
4
5
6
7
DISTRICT COURT
10
702-906-2411 Fax 866-299-5274
T ANASI L AW O FFICES
11
12
13
STEVEN STEWART,
Defendant.
14
15
16
17
18
19
20
21
22
I.
23
24
25
26
27
28
v.
Introduction
The undersigned sought to confirm with the government would produce Giglio and
Jenks materials prior to trial via email prior to filing this Motion in an effort to comply with
LCR 16-1(c). The government confirmed it would produce Jenks material thirty (30) days prior
1
Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972)[evidence of any
understanding or agreement as to a future prosecution would be relevant to his credibility and
the jury was entitled to know of it.]
- 1-
to trial. The government was silent on the Giglio material. In an abundance of caution, this
Motion follows. Consistent with the early disclosure of Jenks material, Mr. Stewart respectfully
requests that the government be ordered to produce all Giglio material as it becomes known to
the prosecution, but not later than thirty (30) days prior to trial.
5
6
T ANASI L AW O FFICES
II.
Due process protections require the government to disclose all evidence favorable to Mr.
Stewart while also ensuring his constitutional right to explore the adverse witnesses bias and
credibility in preparation for cross-examination. Giglio v. United States, 405 U.S. 150, 153
10
(1972); Giles v. Maryland, 386 U.S. 66, 70 (1967); Napue v. Illinois, 360 U.S. 264, 269-70
11
(1959) (denial of due process occurred where the prosecutor failed to correct a prosecution
12
witness who testified perjuriously that he had received no promise of consideration in exchange
13
for his testimony). See also, Villaromen v. United States, 184 F.2d 261, 262 (D.C. Cir. 1950)
14
15
only possible when material is disclosed at such time as to allow the defense to use the
16
favorable material effectively in the preparation and presentation of its case. United States
17
V. Pollack, 534 F.2d 964, 973 (D.C. Cir.), cert. denied, 429 U.S. 924 (1976); See, e.g., United
18
States v. Recognition Equipment, Inc., 711 F. Supp. 1, 14 (D.D.C. 1989) (ordering immediate
19
disclosure of evidence regarding criminal records and other impeachment information for
20
government witnesses, statements indicating that the defendants were not members of the
21
22
The well settled case law leading up to Giglio establishes the governments affirmative
23
duty to disclose all evidence favorable to the defendant which is material either to guilt or
24
punishment. Brady v. Maryland, 373 U.S. 83, 87 (1963). Failure to provide such material will
25
violate due process irrespective of the good faith or bad faith of the prosecution. Id.
26
Accordingly, nondisclosure of this material can serve as a basis for dismissal, reversal on
27
appeal, or other appropriate relief resulting in unnecessary delays. See, United States v. Agurs,
28
427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976); Brady, supra.
- 2-
T ANASI L AW O FFICES
regarding government witnesses. United States v. Bagley, 473 U.S. 667, 105 S.Ct. 3375, 87
L.Ed. 2d 481 (1985). Such evidence is evidence favorable to an accused, so that, if disclosed
and used effectively, it may make the difference between conviction and acquittal. Id. at 676,
quoting Brady, supra, at 87. In Bagley the court rejected drawing a distinction between
impeachment and exculpatory evidence. Rather, the court relied on the sound reasoning in
Giglio, noting that nondisclosure of evidence affecting credibility falls within th[e] general rule
[of Brady]. Bagley, at 677, quoting Giglio, 405 U.S. at 154, 92 S.Ct., at 766. Certainly, the
10
more central the witness to the governments case, the greater the likelihood that undisclosed
11
impeachment information will be held to be material on appeal. See, United States v. Bernal-
12
Obeso, 989 f.2d 331 (9th Cir. 1993) (remanding for inquiry whether informant lied at trial with
13
14
Clearly the prosecution is in the best position to know of the evidence available and
15
witnesses to be called. Accordingly, the government has a duty to exercise due diligence in
16
determining the existence of evidence favorable to the defense. Kyles v. Whitley, 514 U.S. 419,
17
437-38 (1995). While the prosecution is not required to disclose their entire file, the duty does
18
extend to information affecting witness credibility and evidence that, if suppressed, will result
19
in a miscarriage of justice. Bagley, supra. If there is any doubt as to the nature of the evidence
20
to be disclosed, the government has an obligation to produce the material for an in camera
21
review by the court. United States v. Cadet, 727 F.2d 1453, 1467-68 (9th Cir. 1984). Prudence
22
requires resolving any doubts regarding Brady evidence in favor of disclosure. United States v.
23
24
///
25
///
26
///
27
///
28
///
- 3-
III.
Conclusion
government witnesses and effectively mount his defense, Mr. Stewart requests that the
government be ordered to disclose all Giglio material as it becomes known, but not later than
8
TANASI LAW OFFICES
10
702-906-2411 Fax 866-299-5274
T ANASI L AW O FFICES
11
12
13
14
15
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on the 3rd day of October, 2016, the undersigned served the
16
17
on all counsel herein by causing a true copy thereof to be filed with the Clerk of Court using the
18
CM/ECF system, which was served via electronic transmission by the Clerk of Court pursuant
19
to local order.
20
21
22
23
24
25
26
27
28
- 4-