United States District Court, D. Colorado
ORDER RE: DEFENDANT FNU LNU AKA CHAPARRO'S MOTION
FOR PRODUCTION OF NEGATIVE EXCULPATORY STATEMENTS UNDER
E. BLACKBURN UNITED STATES DISTRICT JUDGE.
matter before me is defendant Rios-Sotelo's Motion for
Production of Negative Exculpatory Statements Under Brady
[#947],  filed April 25, 2016. The government filed
a response ([#1020], on May 23, 2016).
motion, Mr. Rios-Sotelo seeks pretrial disclosure of
“any written or oral statement(s) by anyone who gained
knowledge of the drug delivery by Rios-Sotelo where the
statement did not reflect Rios-Sotelo having delivered 500
grams or more of methamphetamine.” (Def. Motion ¶
4 at 4.) The government represents that
“defendant has the essential information necessary to
proceed with his defense” because such was made public
in the plea agreements of the codefendants charged in this
same count of the Indictment. As for the statements
themselves, the government notes disclosure is not required
until after a witness (other than the defendant) testifies.
See 18 U.S.C. § 3500(a). Nevertheless, it
agrees to produce witness statements at least two weeks prior
to trial. (See Gov't Resp. at 1-2.)
fashioning my ruling, I have considered all relevant
adjudicative facts in the file and record of this case. I
have considered all relevant facts to which there is no
express or implied objection. I have considered, but not
necessarily accepted, the reasons stated, arguments advanced,
and authorities cited by counsel in their papers.
my analysis with a rehearsal of some of the relevant
constitutional and legal principles that guide and govern
discovery in criminal cases in federal court. In the main,
discovery in a criminal case is governed by the provisions of
Fed. R. Crim. P. 6, 12, 16, and 26.2; the Jencks Act, 18
U.S.C. § 3500; and - most relevantly for present
purposes - the holdings of Brady v. Maryland,
United States v. Bagley,  Giglio v. United
States,  Roviaro v. United States,
their progeny. Discovery in this case is controlled also
by the Discovery Conference Memorandum and Order [#293],
filed July 8, 2015.
“[t]here is no general constitutional right to
discovery in a criminal case.” Weatherford v.
Bursey, 429 U.S. 545, 559, 97 S.Ct. 837, 846, 51 L.Ed.2d
30 (1977). Significantly, there is no requirement that
“the prosecution make a complete accounting to the
defense of all evidence in its possession, ” United
States v. Baxter, 492 F.2d 150, 173 (9th Cir.
1973), cert. denied, 94 S.Ct. 1945 (1974), and
Brady does not require the prosecution to divulge
every possible shred of evidence that could conceivably
benefit the defendant, Smith v. Secretary of New Mexico
Department of Corrections, 50 F.3d 801, 823-24
(10th Cir.), cert. denied, 116 S.Ct. 272
(1995). Moreover, the accused has no right to rummage through
the government's files, United States v.
Williams, 580 F.2d 578, 585 (D.C. Cir.), cert.
denied, 99 S.Ct. 112 (1978), and Brady does not
authorize wholesale discovery or demand an “open
file” policy, Kyles v. Whitley, 514 U.S. 419,
436-37, 115 S.Ct. 1555, 1567, 131 L.Ed.2d 490 (1995). See
also United States v. Mayes, 917 F.2d 457, 461
(10th Cir. 1990) (noting the Constitution
“does not grant criminal defendants the right to embark
on a broad or blind fishing expedition among documents
possessed by the Government”) (citation and internal
quotation marks omitted).
Brady requires only the disclosure of information
that is material in a constitutional sense. Bagley,
473 U.S. at 682. The mere possibility that discovery might
help the defense does not establish materiality in the
constitutional sense. “The criterion of materiality is
met only if there is a ‘reasonable probability'
that the outcome of a trial would have been different had the
evidence been disclosed to the defense.” United
States v. Gonzales-Montoya, 161 F.3d 643, 649
(10th Cir. 1998). Reading Brady and
Giglio together, the government must produce or
disclose evidence that is favorable to the accused when
relevant to guilt, credibility, or punishment.
Brady, 83 S.Ct. at 1196; Giglio, 92 S.Ct.
no evidence has been presented or proffered to the contrary,
I am satisfied that the government is cognizant of and will
continue to comply with its ongoing obligation to disclose
materials as required by the relevant provisions of the
Federal Rules of Criminal Procedure, Brady,
Bagley, Giglio, Roviaro, and their
progeny, and order of the court. Based on the existing
record, I find and conclude (1) that the government is aware
of its continuing duty to disclose to Mr. Rios-Sotele the
discovery to which he is entitled by law; (2) that the
government has discharged its duty to provide the discovery
to which he is entitled; (3) that Mr. Rios-Sotelo has been
provided pro tanto the discovery to which he is
entitled under the Federal Rules of Criminal Procedure, and
under Brady, Bagley, Giglio,
Roviaro, and their progeny; (4) that no discreet or
specific discovery violation is claimed or circumstantiated;
and (5) that Mr. Rios-Sotelo is not now entitled to discovery
beyond that already provided by the government or otherwise
available to him or beyond that the government represents it
will provide. Thus, to the extent Mr. Rios-Sotelo has the
discovery to which he is entitled, his motion should be
denied as moot, and to the extent he requests discovery to
which he has no right, his motion should be denied.
IT IS ORDERED as follows:
defendant's Motion for Production of Negative Exculpatory
Statements Under Brady [#947], filed April 25, 2016 is denied
as moot in part and denied in part consistent with the
foregoing findings and conclusions and the following orders:
concerning the discovery that is required by law, the motion
is denied as moot; and
concerning the discovery not required by law, but that
defendant requests, the motion is denied.