Opposition to Motion for Discovery; Exhibit

Case 5:07-cr-00127-SGL

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Filed 12/03/2007

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THOMAS P. O’BRIEN United States Attorney SHERI PYM Assistant United States Attorney Chief, Riverside Branch Office JERRY A. BEHNKE (SBN: 180462) CHARLES J. KOVATS (SBN: 184185) Assistant United States Attorneys 3880 Lemon Street, Suite 210 Riverside, California 92501 Telephone: (951) 276-6211 Facsimile: (951) 276-6202 E-mail: [email protected] Attorneys for Plaintiff UNITED STATES OF AMERICA

9 UNITED STATES DISTRICT COURT 10 FOR THE CENTRAL DISTRICT OF CALIFORNIA 11 12

UNITED STATES OF AMERICA,

13

Plaintiff,

14

v.

15

JOSE LUIS NAZARIO, JR.,

16

Defendant.

) ) ) ) ) ) ) ) ) )

No. ED CR 07-127-SGL OPPOSITION TO MOTION FOR DISCOVERY; EXHIBIT Hearing Date: December 17, 2007 Hearing Time: 2:00 p.m.

17 18

Plaintiff, United States of America, through its counsel of

19

record, Assistant United States Attorneys Jerry A. Behnke and

20

Charles J. Kovats, hereby opposes defendant’s motion for

21

discovery.

22

authorities, exhibit, the files and records in this case, and any

23

///

24

///

25

///

26 27 28

This opposition is based on the attached points and


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additional evidence or argument presented at the hearing on the

2

motion.

3

DATED: December 3, 2007

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Respectfully submitted, THOMAS P. O’BRIEN United States Attorney

5 6

SHERI PYM Assistant United States Attorney Chief, Riverside Branch Office

7 8 9

/s/ ________________________________ JERRY A. BEHNKE CHARLES J. KOVATS Assistant United States Attorneys

10 11

Attorneys for Plaintiff United States of America

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2


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TABLE OF CONTENTS

2

PAGE

3

TABLE OF AUTHORITIES

4

POINTS AND AUTHORITIES

5

I.

INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . 3

6

II.

FACTS UNDERLYING THE PRESENT INDICTMENT

7

III. DISCOVERY PRODUCED . . . . . . . . . . . . . . . . . . . . 5

8

IV.

9

. . . . . . . . . . . . . . . . . . . .

ii

. . . . . . . . . . . . . . . . . . . . 3

. . . . . . . . . 3

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . 5 A.

The Scope of the Government’s Discovery Obligation . . . . . . . . . . . . . . . . . . . . . 5

B.

The Government Must Only Disclose Material Which the Government Has Knowledge of and Access To . . . . . . . . . . . . . . . . . . . . . . 7

C.

Even if Other DOD Components Are Part of the Prosecution Team for Discovery Purposes, Defendant Has Failed to Establish Materiality of Much of the Information He Seeks . . . . . . . .

10

Defendant’s Discovery Request

11

10 11 12 13 14 15

D.

16 17 18 19 20 21 22 23 24 25 26 27 28

i

. . . . . . . . . .


1

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TABLE OF AUTHORITIES

2

PAGE(S)

3

FEDERAL CASES:

4

Brady v. Maryland, 373 U.S. 83 (1963) . . . . . . . . . . . . . . . . .

passim

5 6

Giglio v. United States, 405 U.S. 150 (1972)

7

United States v. Avellino, 136 F.3d 249 (2nd Cir. 1998) . . . . . . . . . . . . . . . 9

. . . . . . . . . . . . . . . 6, 13, 14

8 9

United States v. Grace, 493 F.3d 1119 (9th Cir. 2007)

. . . . . . . . . . . . 7, 12

10

United States v. Harris, 543 F.2d 1247 (9th Cir. 1975)

. . . . . . . . . . . . .

12

11 12

United States v. Pelullo, 399 F.3d 197 (3rd Cir. 2005) . . . . . . . . . . . . . . . 9

13

United States v. Roberts, 811 F.2d 257 (4th Cir. 1987) . . . . . . . . . . . . . .

11

14 15

United States v. Santiago, 47 F.3d 885 (9th Cir. 1995)

16

United States v. Shryock, 342 F.3d 948 (9th Cir. 2003) . . . . . . . . . . . . . . . 7

. . . . . . . . . . . .

passim

17 18

United States v. Sukumolachan, 610 F.2d 685 (9th Cir. 1980) . . . . . . . . . . . .

19

United States v. Wood, 57 F.3d 733 (9th Cir. 1995)

12, 13

. . . . . . . . . . . . .

8, 9

20 FEDERAL STATUTES: 21 Title 18, United States Code: 22 Section 3500 . . . . . . . . . . . . . . . . . . . . . . . 6 23 RULES: 24 Federal Rules of Criminal Procedure: 25 Rule 16

. . . . . . . . . . . . . . . . . . . . . . . 6, 10

26 Rule 16(a)(1)(E) . . . . . . . . . . . . . . . . . . . . 27 28

ii

13


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TABLE OF AUTHORITIES (Cont’d.)

2

PAGE(S)

3

RULES:

4

Federal Rules of Criminal Procedure:

5

Rule 16(a)(2)

6

Rule 404(b)

. . . . . . . . . . . . . . . . . . . . . .

14

7

Rule 609 . . . . . . . . . . . . . . . . . . . . . . . .

14

. . . . . . . . . . . . . . . . . . . . . . 6

8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

iii


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POINTS AND AUTHORITIES I.

3

INTRODUCTION Defendant has filed a motion for an order compelling the

4

government to search for and produce various materials, including

5

materials believed to be held by the United States Marine Corps

6

(“USMC”), United States Navy (“USN”), Naval Criminal

7

Investigation Service (“NCIS”) and Department of Defense (“DOD”).

8

As explained further below, much of the material sought by

9

defendant has already been produced by the government or simply

10

does not exist.

11

motion is whether the government is compelled to search the files

12

of all DOD components for the materials sought by defendant that

13

have not already been produced.

14

has satisfied its discovery obligations and, to the extent

15

defendant requests additional material, his motion should be

16

denied on the grounds that (1) DOD components beyond the NCIS are

17

not part of the prosecution team for purposes of discovery; and

18

(2) even if all DOD components are part of the prosecution team,

19

defendant has not established that the requested discovery is

20

material to the defense of this matter.

21

II.

Thus, the pertinent issue for purposes of this

The government believes that it

FACTS UNDERLYING THE PRESENT INDICTMENT1

22

Defendant is charged with manslaughter in the shooting

23

deaths of several detainees who had been captured by defendant’s

24 25 26 27 28

1

The following facts are taken from the redacted affidavit of NCIS Special Agent Mark Fox in support of the criminal complaint in this matter, a copy of which is attached hereto as Exhibit 1. 3


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squad in Fallujah, Iraq, in November 2004.

2

offense, defendant was a squad leader in the USMC.

3

squad was taking part in a combat operation to clear the city of

4

Fallujah of enemy insurgents.

5

At the time of the Defendant’s

On November 9, 2004, the first day of the combat operation,

6

defendant’s squad was assigned to clear a house in the city.

7

According to the Marines who were present at the house, when the

8

Marines entered the house, they were immediately confronted by

9

four unarmed males.

The Marines detained the four males and then

10

conducted a search of the house.

11

ammunition.

12

The Marines found AK-47s and

Some of the Marines then saw defendant place a call over his

13

radio and report the situation.

14

house, after the radio conversation, defendant told the other

15

Marines that he was asked “Are they dead yet,” to which he

16

responded “negative.”

17

it happen.”

18

something to the effect of, “You know what has to be done.”

19

Defendant then grabbed one of the detained males and led him into

20

another room and shot him in the head.

21

at that point defendant said something to the effect of, “Who

22

else wants to kill these guys, because I don’t want to do it all

23

myself.”

24

detainees and defendant shot the fourth detainee himself.

According to Marines in the

Defendant then said he was told to “make

Defendant told the other Marines in the house

Defendant then ordered other Marines to kill two of the

25 26 27 28

According to one Marine,

4


1

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III. DISCOVERY PRODUCED

2

To date, the government has provided defendant 1166 pages of

3

discovery, including witness statements, military records,

4

casualty reports, briefing materials and photographs.

5

government has also provided approximately 16 compact discs

6

containing audio recordings of witness statements, photographs,

7

and military personnel records of the defendant.

8

government has provided both audio recordings and transcripts of

9

consensually monitored phone calls involving the defendant.

10

The

Finally, the

To date, defendant has not provided any discovery to the

11

government.

12

IV.

ARGUMENT

13

A.

The Scope of the Government’s Discovery Obligation

14

While the government has voluntarily produced much of the

15

material sought by defendant, the government is not legally

16

compelled to search for and produce all of the materials he is

17

seeking in his motion.

18

cases is Federal Rule of Criminal Procedure 16, which sets forth

19

discovery obligations for both defendant and the government.

20

Under that rule, the government is required to produce (1) any

21

oral statement made by defendant in response to interrogation by

22

a government agent that the government intends to use at trial;

23

(2) any written or recorded statement of the defendant; (3) a

24

copy of defendant’s prior criminal record; (4) documents or

25

objects that are material to the defense, that the government

26

intends to use at trial, or that were taken from the defendant;

The primary discovery rule in criminal

27 28

5


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(5) reports of physical or mental examinations or scientific

2

tests that are material to the defense or that the government

3

intends to use at trial; and (6) a written summary of any expert

4

testimony that the government intends to use at trial.

5

specifically excludes from disclosure “any reports, memoranda, or

6

other internal government documents made by an attorney for the

7

government or other government agent in connection with

8

investigating or prosecuting the case.”

9

The rule

Fed.R.Crim.P. 16(a)(2).

In addition to the requirements of Rule 16, the government

10

must also disclose any exculpatory information pursuant to Brady

11

v. Maryland, 373 U.S. 83 (1963), and any information material to

12

the credibility of government witnesses pursuant to Giglio v.

13

United States, 405 U.S. 150 (1972).

14

witnesses have testified on direct examination, the government

15

must upon motion by defendant produce any written or recorded

16

statement of the witness that relates to the subject matter about

17

which the witness testified.

18

Also, after government

18 U.S.C. § 3500 (“Jencks Act”).

As described above, the government has voluntarily produced

19

extensive discovery that exceeds the scope of its discovery

20

obligations.

21

order compelling discovery beyond that required by law, his

22

motion should be denied.

23

However, to the extent that defendant now seeks an

To the extent defendant urges this Court to order discovery

24

based on the supervisory authority of the Court, such order

25

cannot exceed the scope of discovery required by law.

26

States v. Grace, 493 F.3d 1119, 1128 (9th Cir. 2007)(holding

27 28

6

See United


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1

trial court erred in issuing discovery order that exceeded

2

requirements of Rule 16).

3

B.

The Government Must Only Disclose Material Which the

4

Government Has Knowledge of and Access To

5

The government is required to turn over Brady material “when

6

the prosecutors have knowledge of and access to the documents

7

sought by the defendant.”

United States v. Shryock, 342 F.3d

8

948, 983 (9th Cir. 2003).

The government has and will continue

9

to search for and produce any discoverable material within the

10

possession of the United States Attorney and NCIS.

11

agency responsible for conducting this investigation.

12

defendant contends that because NCIS is within the Department of

13

Defense and because defendant was employed within the USMC at the

14

time of the offense, that the government’s discovery obligation

15

extends to any material within the custody and control of the

16

DOD.

17

arises under the Military Extraterritorial Jurisdiction Act

18

(“MEJA”) that the entire DOD is considered to be part of the

19

prosecution team.

20

NCIS is the However,

Additionally, defendant asserts that because jurisdiction

The cases relied upon by defendant are inapposite.

First,

21

defendant cites United States v. Santiago, 47 F.3d 885 (9th Cir.

22

1995), for the proposition that non-investigative agencies are

23

part of the prosecution team for discovery purposes.

24

case, the Ninth Circuit held that prisoner files held by the

25

Bureau of Prisons (“BOP”) that contained Brady information

26

related to government witnesses were discoverable.

27 28

7

In that

The Ninth


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Circuit concluded that the requested BOP records were considered

2

to be in the possession and control of the United States Attorney

3

for discovery purposes.

4

the BOP participated in the initial investigation and located

5

much of the physical evidence used by the government; (2) the

6

prosecutor had obtained the defendant’s BOP files; and (3) BOP is

7

another branch of the Department of Justice.

8

However, the court also explained that the United States Attorney

9

is not deemed to have imputed knowledge and possession of files

10 11

of all federal agencies.

In so holding, the court noted that (1)

Id. at 893-894.

Id. at 894.

Similarly, in United States v. Wood, 57 F.3d 733 (9th Cir.

12

1995), the Ninth Circuit held that “the agency charged with

13

administration of the statute, which has consulted with the

14

prosecutor in the steps leading to prosecution, is to be

15

considered as part of the prosecution. . .”

16

added).

17

obstructing the FDA and distribution of GHB.

18

determined the FDA was part of the prosecution team because it

19

was “the agency interested in the prosecution.”

20

agencies interested in the prosecution within the meaning of

21

Santiago and Wood are the United States Attorney and NCIS.

22

other DOD components, including the Navy and Marine Corps, are

23

beyond the scope of the prosecution team for discovery purposes.

24

While NCIS and the USMC are both within the Navy Department, USMC

25

and the USN are large entities whose primary tasks involve the

26

defense of this country and not the investigation of criminal

There, Wood was charged with several counts related to

27 28

Id. at 737 (emphasis

8

The Ninth Circuit

Id.

Here, the

The


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1

matters.

2

Additionally, DOD components are outside the Department of

3

Justice and their files and records are not accessible to the

4

United States Attorney’s Office.

5

399 F.3d 197, 218 (3rd Cir. 2005)(holding entire Department of

6

Labor (“DOL”) not part of prosecution team even though some DOL

7

agents participated in investigation where other DOL components

8

had not played role in criminal investigation).

9

broad reading of the government’s discovery obligation would be

The investigative branch of the Navy and USMC is NCIS.

See United States v. Pelullo,

Indeed, such a

10

unworkable.

11

(2nd Cir. 1998)(explaining that “imposition of an unlimited duty

12

on a prosecutor to inquire of other offices not working with the

13

prosecutor’s office on the case in question would inappropriately

14

require us to adopt a ‘monolithic view of government’ that would

15

‘condemn the prosecution of criminal cases to a state of

16

paralysis’”).

17

C.

See United States v. Avellino, 136 F.3d 249, 256

Even if Other DOD Components Are Part of the Prosecution

18

Team for Discovery Purposes, Defendant Has Failed to

19

Establish Materiality of Much of the Information He Seeks

20

A party seeking discovery under Rule 16 must first make a

21

showing that the information sought is material.

22

F.3d at 894.

23

show that the government possesses information that would be

24

helpful to the defense.2

Santiago, 47

This requires defendant to present facts tending to

Id.

In establishing materiality,

25 26

2

27

Defendant cites to the declaration of Matthew Cord to establish materiality of the material sought. However, defendant’s reliance on this declaration is misplaced and utterly

28

9


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neither a general description of the information sought nor

2

conclusory allegations will suffice.

3

Circuit held that Santiago had failed to establish the

4

materiality of BOP inmate files.

5

murder of a fellow BOP inmate and the prosecution introduced

6

evidence of Santiago’s gang affiliation.

7

were other BOP inmates.

8

inmate witnesses asserting that, for impeachment purposes, he

9

would need to know whether any witnesses were linked to rival

Id.

In Santiago, the Ninth

Santiago was charged with the

Some of the witnesses

Defense counsel sought BOP files for the

10

gangs and that BOP records were critical.

11

concluded that Santiago failed to meet the materiality

12

requirement.

13

only “conclusory allegations” about the information sought and

14

did not reference any specific facts to establish materiality.

15

Id. at 895.

16

establish materiality of any of the information he seeks.

17

fact, defendant’s assertions do not even rise to the level of the

18

“conclusory allegations” deemed insufficient in Santiago.

Id.

The Ninth Circuit

The court explained that Santiago’s counsel made

In the present case, defendant also fails to In

19 20 21 22 23 24 25 26 27 28

inappropriate for a variety of reasons. First, defendant fails to even establish what the facts and circumstances of the cited cases were. Because evidence is relevant in one case does not automatically make it relevant in all cases. Second, the cited cases were prosecuted in a military court by a military prosecutor under different rules of discovery. Therefore, the government reserves its right to cross examine the declarant and requests that the declarant be made available at the hearing on this matter. In the alternative, the government requests that the declaration be stricken as irrelevant. 10


1 2

D.

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Defendant’s Discovery Request Defendant’s motion is quite broad and generalized.

In fact,

3

in his argument, defendant engages in extensive discussion

4

regarding the government’s obligation to disclose several types

5

of documents that do not even exist in this case.3

6

the government will confine its specific responses to defendant’s

7

39 “categories” of materials cited at pages 2 through 10 of his

8

brief.

9

1.

Therefore,

The government has produced copies of defendant’s

10

statements as well as copies of statements by other persons

11

involved in the offense.

12

government to provide discovery of any statements beyond

13

defendant’s own statements.

14

F.2d 257, 258-259 (4th Cir. 1987)(en banc)(holding statements of

15

co-conspirators not discoverable under Rule 16, rather,

16

disclosure controlled by Jencks Act).

17

not provided any facts to establish that other statements exist

18

that are being withheld by the government.

19

2.

However, the Court should not order the

See United States v. Roberts, 811

Furthermore, defendant has

The government has instructed the agent to retain any

20

rough notes of interviews and will treat such notes as

21

potentially discoverable under the Jencks Act, unless such notes

22 23

3

27

For instance, defendant argues that the government must disclose (1) “copies of all warrants, inventories, and affidavits in support thereof, so that he might know what warrants, if any, the government relied upon to seize property” (Def. Brief p. 22); (2) Jencks material “at the time of the hearing on the motion to suppress evidence” (Def. Brief p. 30) when there is no pending motion to suppress; and (3) copies of any application for courtordered wire taps (Def. Brief at 32).

28

11

24 25 26


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1

reveal exculpatory information in which case they will be treated

2

as Brady material.

3

1250-1253 (9th Cir. 1975).

4 5 6

3-5.

See United States v. Harris, 543 F.2d 1247,

The government will continue to produce any

exculpatory material pursuant to Brady/Giglio. 6.

The government opposes defendant’s request for material

7

that relates to joinder or severance of defendants.

8

material amounts to government work product and is not

9

discoverable.

10

7.

Such

The government opposes defendant’s request for the

11

names, serial number and present assignment of all personnel

12

involved in the investigation.

13

any rule or case law.

14

any witness list in a non-capital case.

15

Sukumolachan, 610 F.2d 685, 688 (9th Cir. 1980); Grace, 493 F.3d

16

at 1129-1130.

17

8.

Such discovery is not mandated by

Indeed, the government need not provide United States v.

The government has and will continue to provide

18

discovery of documents or objects that are material to the

19

defense, that the government intends to use at trial, or that

20

were taken from the defendant.

21

9.

The complaint references recorded telephone calls

22

involving defendant.

23

defendant.

24

10.

Fed.R.Cr.P. 16(a)(1)(E).

Copies of those calls have been produced to

There was no pen register involved. The government will disclose any reports of physical or

25

mental examinations or scientific tests that are material to the

26

defense or that the government intends to use at trial.

27 28

12

To date,


1 2

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none exist that the government is aware of. 12. (Defendant skipped number 11) The government will

3

disclose a written summary of any expert testimony that the

4

government intends to use at trial as required by Rule 16.

5

13-16.

The government need not provide any witness list in

6

a non-capital case.

7

Committee Notes to the 1975 Enactment clearly state that the

8

intent behind the rule was to prevent either party from being

9

required to disclose the names and addresses of witnesses prior

Sukumolachan, 610 F.2d at 688.

The

10

to trial in non-capital cases.

11

government has voluntarily provided to defendant the names of the

12

witnesses to the offense as well as copies of those witnesses’

13

statements to investigators.

14

17-21.

However, in this case the


15

discovery pursuant to Brady and Giglio.

16

the defendant requests that the government seek out such

17

information beyond what it has already disclosed, defendant has

18

not set forth any specific facts to establish materiality.

19

Santiago, 47 F.3d at 895.

20

22.

However, to the extent

See


21

discovery pursuant to Brady and Giglio.

22

discovery request is overly-broad and is not supported by any

23

factual showing to permit a more specific response.

24 25 26

23-24.

Defendant fails to make any factual showing to

establish materiality of the information sought. 25.

The government will make inquiry regarding any

27 28

Beyond that, defendant’s

13


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1

government agents who will testify at trial pursuant to Henthorn.

2

However, the government will not submit such files to the Court.

3

The government will conduct its own review of the files and will

4

only seek in camera review if there is questionable material.

5

26.

The government has informed defendant that grand jury

6

transcripts and other Jencks material that has not already been

7

disclosed will be disclosed one week before trial assuming (1) a

8

court order has been issued for such disclosure; and (2)

9

defendant agrees to reciprocal discovery at that time.

10 11 12

27.

The government is unaware at this time of any Rule 609

or 404(b) material. 28-29.

The government has provided and will continue to

13

provide copies of or make available for inspection by defendant

14

any exhibits or documents it intends to use at trial.

15

30.

16

this request.

17

showing to establish materiality of the information sought

18

31.

The government does not know what defendant seeks in In any event, defendant fails to make any factual


19

establish materiality of the information sought or to even

20

establish what, if any, surveillance he is referring to.

21 22 23 24 25 26

32.

Defendant cites no authority for the proposition that

sentencing information is discoverable prior to trial. 33.



No evidence or samples were seized from defendant.

Beyond that, defendant fails to make any factual showing to

27 28

14


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3


4

any exhibits or documents it intends to use at trial and will

5

provide disclosure of any expert witness it intends to call at

6

trial.

7

autopsies in this case.

8 9

The government has informed defendant that there are no

36.



10

any exhibits or documents it intends to use at trial.

11

that, defendant fails to make any factual showing to establish

12

materiality of the information sought.

13 14 15 16 17

37.

Beyond






18

establish materiality of the information sought.

19

city of more than 300,000 people and the combat operations on

20

November 9, 2004 involved thousands of personnel.

21

the events at issue took place inside a residence.

22

photos depicting “the events of November 8-11, 2004 in Fallujah,

23

Anbar Province, Iraq” exist, defendant has not established

24

materiality of the photos.

25 26 27 28

15

Fallujah is a

Furthermore, Thus, even if