10-03-2016 ECF 749 USA V Steven Stewart - Motion To Compe

Case 2:16-cr-00046-GMN-PAL Document 749 Filed 10/03/16 Page 1 of 4
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DISTRICT COURT
CLARK COUNTY, NEVADA
UNITED STATES OF AMERICA,

Plaintiff,
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702-906-2411 Fax 866-299-5274
601 S. Seventh Street, 2nd Floor

Las Vegas, Nevada 89101
T ANASI L AW O FFICES
RICHARD E. TANASI, ESQ.

Nevada Bar No. 9699
TANASI LAW OFFICES
Las Vegas, NV 89101
Telephone: (702) 906-2411
Facsimile: (866) 299-5274
Email: [email protected]
Attorney for Defendant
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STEVEN STEWART,
Defendant.
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MEMORANDUM IN SUPPORT OF DEFENDANTS MOTION FOR

TIMELY PRODUCTION OF GIGLIO MATERIAL
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Defendant, STEVEN STEWART, through his attorney, RICHARD E. TANASI, ESQ.

of TANASI LAW OFFICES, hereby submits this Memorandum in Support of Defendants
Motion for timely production of Giglio1 material. This motion is based on the following
Memorandum of Points and Authorities, all papers and pleadings herein, together with
arguments of counsel at the time of a hearing in this matter.
MEMORANDUM OF POINTS AND AUTHORITIES
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I.
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Case No. 2:16-cr-00046-GMN-PAL
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
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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.]
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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.
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702-906-2411 Fax 866-299-5274

II.
The Government Has An Affirmative Duty to Disclose Evidence Favorable

to Mr. Stewart Including Exculpatory and Impeachment Evidence.
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
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(1972); Giles v. Maryland, 386 U.S. 66, 70 (1967); Napue v. Illinois, 360 U.S. 264, 269-70
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(1959) (denial of due process occurred where the prosecutor failed to correct a prosecution
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witness who testified perjuriously that he had received no promise of consideration in exchange
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for his testimony). See also, Villaromen v. United States, 184 F.2d 261, 262 (D.C. Cir. 1950)
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(Bias of a witness is always relevant). Thorough examination of the evidence, however, is
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only possible when material is disclosed at such time as to allow the defense to use the
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favorable material effectively in the preparation and presentation of its case. United States
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V. Pollack, 534 F.2d 964, 973 (D.C. Cir.), cert. denied, 429 U.S. 924 (1976); See, e.g., United
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States v. Recognition Equipment, Inc., 711 F. Supp. 1, 14 (D.D.C. 1989) (ordering immediate
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disclosure of evidence regarding criminal records and other impeachment information for
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government witnesses, statements indicating that the defendants were not members of the
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charged conspiracy, and evidence supporting the defendants defenses).
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The well settled case law leading up to Giglio establishes the governments affirmative
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duty to disclose all evidence favorable to the defendant which is material either to guilt or
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punishment. Brady v. Maryland, 373 U.S. 83, 87 (1963). Failure to provide such material will
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violate due process irrespective of the good faith or bad faith of the prosecution. Id.
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Accordingly, nondisclosure of this material can serve as a basis for dismissal, reversal on
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appeal, or other appropriate relief resulting in unnecessary delays. See, United States v. Agurs,
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427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976); Brady, supra.
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702-906-2411 Fax 866-299-5274

Significantly, the application of Brady is not limited solely to the disclosure of
exculpatory evidence but is also extended to the disclosure of impeachment information
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
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more central the witness to the governments case, the greater the likelihood that undisclosed
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impeachment information will be held to be material on appeal. See, United States v. Bernal-
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Obeso, 989 f.2d 331 (9th Cir. 1993) (remanding for inquiry whether informant lied at trial with
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the governments knowledge).
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Clearly the prosecution is in the best position to know of the evidence available and
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witnesses to be called. Accordingly, the government has a duty to exercise due diligence in
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determining the existence of evidence favorable to the defense. Kyles v. Whitley, 514 U.S. 419,
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437-38 (1995). While the prosecution is not required to disclose their entire file, the duty does
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extend to information affecting witness credibility and evidence that, if suppressed, will result
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in a miscarriage of justice. Bagley, supra. If there is any doubt as to the nature of the evidence
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to be disclosed, the government has an obligation to produce the material for an in camera
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review by the court. United States v. Cadet, 727 F.2d 1453, 1467-68 (9th Cir. 1984). Prudence
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requires resolving any doubts regarding Brady evidence in favor of disclosure. United States v.
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Agurs, 427 U.S. at 108.
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III.
Conclusion
Accordingly, in order to protect the defendants constitutional rights, to afford him a
meaningful opportunity to contest the pending charges, prepare for cross-examination of
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
thirty (30) days prior to trial.
DATED this 3rd day of October, 2016.
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TANASI LAW OFFICES
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702-906-2411 Fax 866-299-5274

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/s/ Richard Tanasi
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RICHARD TANASI, ESQ
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CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on the 3rd day of October, 2016, the undersigned served the
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foregoing MOTION FOR TIMELY PRODUCTION OF GIGLIO MATERIAL
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on all counsel herein by causing a true copy thereof to be filed with the Clerk of Court using the
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CM/ECF system, which was served via electronic transmission by the Clerk of Court pursuant
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to local order.
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/s/ Richard Tanasi
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RICHARD E. TANASI, ESQ.
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10-03-2016 ECF 749 USA V Steven Stewart - Motion To Compe

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Case 2:16-cr-00046-GMN-PAL Document 749 Filed 10/03/16 Page 1 of 4

CLARK COUNTY, NEVADA

UNITED STATES OF AMERICA,

601 S. Seventh Street, 2nd Floor

RICHARD E. TANASI, ESQ.

MEMORANDUM IN SUPPORT OF DEFENDANTS MOTION FOR

Defendant, STEVEN STEWART, through his attorney, RICHARD E. TANASI, ESQ.

Case No. 2:16-cr-00046-GMN-PAL

Case 2:16-cr-00046-GMN-PAL Document 749 Filed 10/03/16 Page 2 of 4

702-906-2411 Fax 866-299-5274

601 S. Seventh Street, 2nd Floor

The Government Has An Affirmative Duty to Disclose Evidence Favorable

(Bias of a witness is always relevant). Thorough examination of the evidence, however, is

charged conspiracy, and evidence supporting the defendants defenses).

Case 2:16-cr-00046-GMN-PAL Document 749 Filed 10/03/16 Page 3 of 4

702-906-2411 Fax 866-299-5274

601 S. Seventh Street, 2nd Floor

Significantly, the application of Brady is not limited solely to the disclosure of

exculpatory evidence but is also extended to the disclosure of impeachment information

the governments knowledge).

Agurs, 427 U.S. at 108.

Case 2:16-cr-00046-GMN-PAL Document 749 Filed 10/03/16 Page 4 of 4

Accordingly, in order to protect the defendants constitutional rights, to afford him a

meaningful opportunity to contest the pending charges, prepare for cross-examination of

thirty (30) days prior to trial.

DATED this 3rd day of October, 2016.

601 S. Seventh Street, 2nd Floor

/s/ Richard Tanasi

RICHARD TANASI, ESQ

foregoing MOTION FOR TIMELY PRODUCTION OF GIGLIO MATERIAL

/s/ Richard Tanasi

RICHARD E. TANASI, ESQ.

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