United States District Court, D. Colorado
ORDER DENYING DEFENDANT LOYA-RAMIREZ'S MOTION FOR
PRODUCTION OF NEGATIVE EXCULPATORY STATEMENTS UNDER
E. BLACKBURN UNITED STATES DISTRICT JUDGE.
matter before me is defendant Jorge Loya-Ramirez's Motion
for Production of Negative Exculpatory Statements Under Brady
[#1305],  filed September 9, 2016. The government
has filed a response ([#1523] on January 17, 2017).
motion, Mr. Loya-Ramirez seeks pretrial disclosure of
“negative exculpatory statements, ” specifically
“the contents of any written or oral statement(s) by
anyone who gained knowledge of the drug delivery by
Defendant, Loya-Ramirez where the statement did not reflect
Loya-Ramirez having delivered 500 grams or more of
methamphetamine.” (Def. Motion at 2.) The government
responds by noting(1) that Mr. Loya-Ramirez is not charged in
the count of the Indictment to which he refers; (2) that he
fails to demonstrate a good faith belief that such
information even exists and thus is merely on a fishing
expedition; and (3) that his “negative exculpatory
statements” theory has been rejected in this circuit.
(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 [#243], filed
July 6, 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.
government correctly points out, the theory on which Mr.
Loya-Ramirez purports to be entitled to these witness
statements is not the law in this circuit. Brady
requires the government to produce exculpatory evidence, not
evidence which is merely not inculpatory. “If a
statement does not contain any expressly exculpatory
material, the Government need not produce that statement to
the defense. . . . We are confident that the Supreme Court
did not intend the Brady holding to sweep so
broadly.” United States v. Comosona, 848 F.2d
1110, 1115 (10th Cir. 1988). See also United
States v. Kennedy 819 F.Supp. 1510, 1519 (D. Colo.)
(“The Tenth Circuit has specifically interpreted the
requirement for disclosure of evidence favorable to the
defendant to mean evidence which is ‘expressly
exculpatory.'”) (citation omitted),
aff'd, 994 F.2d 747 (10th Cir. 1993).
The motion therefore is inapt, and thus will be
IT IS ORDERED that defendants Motion for Production of
Negative Exculpatory Statements Under Brady [#1305], filed
September 9, 2016, is denied.
“[#1305]” is an example of
the convention I use to identify the docket number assigned
to a specific paper by the court's electronic case filing
and management system (CM/ECF). I use this convention
throughout this order and other orders entered in this
 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d
473 U.S. 667, 105 S.Ct. 3375, 87
L.Ed.2d 481 ...