Pretrial Motions: Stuff to Know

To Get The Discovery You Need

Jay McEntire,
Assistant Federal Defender,
Federal Defenders of Eastern Washington & Idaho
Spokane, Washington
Pretrial Motions: Stuff to Know to Get the Discovery You Need
John B. McEntire, Trial Attorney
Federal Defenders of Eastern Washington & Idaho
Rule 17 - Subpoenas
What: An unbelievably useful way to get potentially exculpatory information if you
can show 1) relevance, 2) admissibility, and 3) specificity.
Leading Case U.S. v. Nixon, 418 U.S. 683, 700 (1974)
2d Circuit United States v. Tucker, 249 F.R.D. 58, 62 (S.D.N.Y 2008)
9th Circuit United States v. Reed, 726 F.2d 570, 577 (9th Cir. 1984)

What Else: A chance to tell your story to the judge without government
interference.
How: Make Rule 17 requests ex parte. All you need is a showing of
the need for confidentiality.
Leading Case U.S. v. Tomison, 969 F. Supp. 587 (E.D. Cal. 1997)
1st Circuit U.S. v. Kravetz, 706 F.3d 47 (1st Cir. 2013)
2d Circuit U.S. v. Florack, 838 F. Supp. 77 (W.D.N.Y. 1993)
9th Circuit U.S. v. Martinov, 2012 U.S. Dist. LEXIS 129432 (N.D. Cal.,
Sep. 11, 2012)
10th Circuit U.S. v. Daniels, 95 F. Supp. 2d 1160 (D. Kan. 2000)

How Else: Ask for pretrial production, which requires you to show that 1) you tried to
get the stuff, 2) you need the stuff, and 3) it is a legit request.
Witness Lists
What: No authority under Rule 16 to obtain the United States witness list. But
there are still ways to obtain this information.
How: Courts can require the United States to disclose witness lists in advance
based on their inherent authority to ensure the proper and orderly
administration of criminal justice.
9th Circuit U.S. v. Harris, 543 F.2d 1247 (9th Cir. 1976)
3d Circuit U.S. v. Higgs, 713 F.2d 39, 44 n.6 (3d Cir. 1983)
4th Circuit U.S. v. Fletcher, 74 F.3d 49, 54 (4th Cir. 1996)
7th Circuit U.S. v. Napue, 834 F.2d 1311 (7th Cir. 1987)
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8th Circuit U.S. v. DeCoteau, 186 F.3d 1008, 1009 n.2 (8th Cir. 1999)
9th Circuit U.S. v. Grace, 526 F.3d 499, 513 (9th Cir. 2008)

Rough Notes
What: Rough notes are hugely helpful. Unfortunately, Rule 16(a)(2) prohibits the
disclosure of these documents, and such notes rarely constitute statements
under Jencks. But there are other ways to obtain rough notes.
How: An agents rough notes may be discoverable under Brady if the defendant
shows that the notes are exculpatory and material.
Leading Case Giglio v. U.S., 405 U.S. 150 (1972) (impeachment evidence
falls under Brady when the reliability of a given witness may
be determinative of a defendants guilt or innocence)
9th Circuit U.S. v. Pisello, 877 F.2d 762, 768 (9th Cir. 1989)
10th Circuit U.S. v. Sullivan, 919 F.2d 1403 (10th Cir. 1990)
At a minimum, move the Court (or ask the United States) to preserve any
and all rough notes.
Leading Case Giglio v. U.S., 405 U.S. 150 (1972) (impeachment evidence
falls under Brady when the reliability of a given witness may
be determinative of a defendants guilt or innocence)
6th Circuit U.S. v. Javidan, 2011 U.S. Dist. LEXIS 148349 (S.D. Mich,
Dec. 27, 2011)
9th Circuit U.S. v. Pisello, 877 F.2d 762, 768 (9th Cir. 1989)
10th Circuit U.S. v. Sullivan, 919 F.2d 1403 (10th Cir. 1990)

U.S. v. Lujan, 530 F. Supp.2d 1224 (D.N.M. 2008) (lengthy
discussion on this topic)

Then you can request an in camera hearing for the court do determine
whether the rough note are Jencks, Giglio, or should otherwise be disclosed.
Protecting Investigators (and their Notes) From Reciprocal Discovery
What: In open file cases, the United States will frequently demand that all reports
generated from defense investigators be disclosed.
How: There are a few simple ways to help insulate reports from disclosure.
1. Do not generate reports.
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2. At the beginning of each report direct your investigator to include the
following language: here are my thoughts and impressions from the
interview with.
3. Avoid using full direct quotes.
Work-product claims are taken very seriously, especially in criminal
proceedings. See U.S. v. Nobles, 422 U.S. 225, 238 (1975).
Careful: Work-product doctrine is a qualified privilege that is waived if, for example,
when an investigator is presented as a witness.
Manuals
What: Another important and often overlooked discovery area.
How: Rule 16(a)(1)(E) should be all you need.
- These manuals are in the United States custody and material to
preparing a defense.
Leading Case Florida v. Harris, 133 S. Ct. 1050 (noting that the best
measure of a dogs reliability are in the records from the dog
in controlled testing environments).
9th Circuit U.S. v. Cedano-Arellano, 332 F.3d 568 (9th Cir. 2003)
(disclosing materials regarding a drug dogs qualifications is
mandatory)

DEAs SOD Program, Hemisphere, and PRISM Surveillance Program
What: Some helpful citations to briefs and court orders on these topics.
1. U.S. v. Fortunato Rodelo Lara, CR-12-0030-EMC (N.D. California)
ECF No. 226 Motion to Compel Discovery
ECF No. 257 Amici Brief by ACLU
ECF No. 267 USAs Opposition to Motion to Compel
ECF No. 278 Reply Supporting Motion to Compel
2. Klayman et. al. v. Obama et. al, CV-13-0851-RJL (D. Columbia)

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Good Stuff
What: A few quotes to both give you the ammo you need during discovery battles
and let you know that there are still judges out there who have your back.
On Rule 16:
A defendant neednt spell out his theory of the case in order to obtain
discovery. Nor is the government entitled to know in advance specifically
what the defense is going to be. The relevant subjection of Rule 16 is written
in categorical terms: upon defendants request, the government must disclose
any documents other objects within its possession, custody or control that are
material to preparing the defense.
. . . .
It thus behooves the government to interpret the disclosure requirement
broadly and turn over whatever evidence it has pertaining to the case.
U.S. v. Hernandez-Meza, No. 12-50220 (9th Cir. June 21, 2013)
On Rule 16 Materiality
Materiality is a low threshold; it is satisfied so long as the information would
have helped the defendant prepare a defense. Information is material even if
it simply causes a defendant to completely abandon a planned dense and take
an entirely different path.
U.S. v. Hernandez-Meza, No. 12-50220 (9th Cir. June 21, 2013)
See also
U.S. v. Muniz-Jacquez, No. 12-50056 (9th Cir. June 10, 2013) (noting
that materiality standard is low and can include evidence that affects
trial strategy and could cause a defendant to seek a plea agreement
instead of proceeding to trial).
On Hide-and-Seek
A rule declaring prosecutor may hide, defendant must seek, is not tenable
in a system constitutionally bound to accord defendants due process.
Douglas v. Workman, 560 F.3d 1156, 1193 (10th Cir. 2009).

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On Exercising Your Fourth Amendment Rights
Prosecutorial conduct that would not have occurred but for hostility or a
punitive animus toward the defendant because he has exercised specific legal
rights violates due process in the pretrial setting.
U.S. v. Gallegos-Curiel, 681 F.2d 1164 (9th Cir. 1982)
On Brady Violations
There is an epidemic of Brady violations abroad in the land. Only judges
can put a stop to it.
- Judge Alex Kozinski
United States v. Olsen, No. 10-36063 (9th Cir. Dec. 10, 2013). Read
the entire dissent by Judge Kozinski. It is some of the most powerful
Brady language youll ever read.



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