Eastern District of California Blog

Internal EDCA Discovery Policy Revealed

The USA Today obtained internal discovery memos for 74 U.S. Attorney Offices through Freedom of Information Act requests.  Here is the Eastern District of California's Discovery Policy Memo for criminal cases, which I obtained from their website.  While much of it is non-controversial and simply follows existing law, there are some tidbits defense attorneys can use in discovery requests and motions. For instance, how many times has an EDCA prosecutor argued that they don't need to turn over exculpatory Brady material until shortly before trial? Well, U.S. Attorney Ben Wagner has directed his prosecutors to turn it over "reasonably promptly after discovery."  

EDCA Court Sanctions Nevada County For Destroying Evidence In Intellectual Property Suit

AtPac Inc. filed suit against the county, Clerk-Recorder Greg Diaz and Florida software firm Aptitude Solutions in Sacramento federal court in February 2010, claiming the loss of its intellectual property when Nevada County's Clerk-Recorder's office was switching software providers from AtPac to Aptitude in 2009.

The lawsuit is ongoing, and to date, the county has spent more than $1.2 million on outside legal counsel to defend the case, which is scheduled to go to trial this fall. Oral arguments for AtPac's motion to find summary judgment in its favor — without going to trial — are scheduled for Tuesday in Sacramento.

In April, federal Judge William Shubb sanctioned Nevada County for scrubbing — erasing all information — a computer server in October of last year. The server contained information on the transfer of county data from AtPac to Aptitude — information material to the case, according to AtPac's legal team.

“The spoliation (destruction), combined with other deceptive discovery practices by defendants, indicates that without some sort of sanction, a fair and just resolution of the action will be impossible,” Shubb wrote in an April order issued in the case.

the Union.com, 6/30/11

SK Foods/Salyer Scheduling Hearing Set For Wed, 10 a.m.

Last week, Judge Karlton adopted in full Magistrate Judge Hollows's findings regarding discovery and scheduling in the Frederick Scott Salyer/SK Foods case and set a status conference on unresolved issues for May 18, 2011, at 10 a.m.  In short, Judge Hollows had recommended that the motions schedule not be delayed due to the voluminous discovery in the case and that a trial be set for late 2011 or early 2012. 

The Salyer Findings & Recommendations, 4-18-11 is a good read on the challenges and enormous costs the defense faces in very large, paper-intensive white collar cases.  Among other things, Judge Hollows encourages the U.S. Attorney's Office to consider setting up a common discovery database in such cases that all parties can access with a password, as the government apparently did through a service called iconnect in U.S. v. Perraud, 2010 WL 228013, at *5 (S.D. Fl. 2010).

Salyer Case Update

AUSA Steve Lapham has joined the team prosecuting former SK Foods Chief Frederick Salyer to replace AUSA Sean Flynn, who is leaving for the U.S. Attorney's office at the center of the white-collar universe, Manhattan's Eastern District of New York.

On Friday, Magistrate Judge Hollows issued a 73-page Salyer Discovery Order 7-9-10, which granted in part, and denied in part, Salyer's motion for discovery. 

The prosecution also filed a motion for permission to listen to jail phone calls between Salyer and a woman who stated at the start of the calls that they were attorney-client privileged.  Government's Salyer Motion re A-C Privileged Jail Calls.  The government claims that these calls are not privileged because the calls were not made under the jail's formal procedures for attorney-client calls.  A hearing on the motion is scheduled for August 3 before Judge Karlton.  Attorneys may want to re-emphasize to incarcerated clients that only calls to attorneys that follow the Sacramento jail's rules for attorney calls are neither monitored nor recorded.  

War of Words Continues in Salyer Case

After the defense accused the prosecution of spewing discovery like a "restless volcano" in its discovery motion, see 6/10 blog, the government counters with the well-worn "fishing expedition" analogy. 

"The defendant wants court-ordered power to drag fishing nets through the distant, briny deeps of records all across the federal government," said prosecutor Matt Segal in papers filed Wednesday in U.S. District Court in Sacramento.

The prosecutors were responding to an earlier defense motion for discovery in the case against Salyer, 54, the former owner of the SK Foods Group in Monterey.

Monterey Herald, 6/17/10.  The Hearing on the discovery motion is set for July 1, 2010.

SK Foods Salyer's Attorneys File Discovery Motion

Attorneys for indicted Pebble Beach agribusinessman Scott Salyer say in a new court filing that federal prosecutors are giving them reams of case information in a hodgepodge way, "like a restless volcano which periodically spews forth discovery."

In a pretrial motion seeking information from federal prosecutors, Salyer's attorneys complain that the government has "showered" the defense with more than 1.5 million records, without a master index, that date back, in some cases, 10 years.

"The scattershot and unexacting manner in which the government is providing discovery ... does not provide even a semblance of due process," Salyer's attorneys said in the motion filed this week.

Prosecutors have until June 15 to file their reply to the defense discovery motion.

Monterey Herald, 6/4/10

Friday's Not Guilty Jury Verdict In Misdemeanor Assault Case

Last Friday, a Sacramento federal jury returned a not guilty verdict on a misdemeanor assault charge in U.S. v. Foreman, No. 09-CR-0073-EFB.  Congratulations to Assistant Federal Defender Lauren Cusick, who represented Foreman.  The verdict followed Foreman's mtn in limine to exclude statements re discovery violations, which relates a series of discovery violations that reportedly led to the magistrate judge decrying a "systemic problem" with discovery in misdemeanor cases in excluding evidence that was provided to the defense only a week before trial.

DOJ Blog Announces Three New Discovery Memos

Yesterday, the DOJ Blog made public and available to download three new memos with guidance for federal prosecutors on discovery in criminal cases.  Although there are no ground-breaking changes, all are worth a read.  Bloggers are already giving their two-cents on what the memos mean and how they may affect federal discovery practice, see Tom Wither's DOJ Issues New Discovery Guidelines, the White Collar Crime Prof Blog's New DOJ Discovery Policies Fall Short, and the WSJ Law Blog.

Only time will tell if and how this will open up discovery practice in the EDCA.  This post contains a few general highlights that defense attorneys might consider keeping on tap for future use along with my own comments on how this might affect discovery practice in the EDCA.  I'm intending a second post on this topic, time permitting. 

1. DOJ Policy Mandates Disclosure Broader Than Discovery Rules:

the United States Attorney’s Manual (USAM) sets forth broad discovery policies that establish the Department’s minimum expectations for prosecutors handling criminal cases in all jurisdictions. See USAM §§ 9-5.001 and 9-5.100. In 2006, the Department amended the United States Attorney’s Manual regarding Brady/Giglioobligations by requiring prosecutors to go beyond the requirements of the Constitution and “take a broad view of materiality and err on the side of disclosing exculpatory and impeaching evidence.” USAM § 9-5.001.

Nothing new here, but it's always worth pointing out that DOJ says prosecutors should go beyond Brady and err on the side of disclosure.

2. Prosecutors Must Seek Out Exculpatory Materials From All Members Of The Prosecution Team:

It is the obligation of federal prosecutors, in preparing for trial, to seek all exculpatory and impeachment information from all members of the prosecution team. Members of the prosecution team include federal, state, and local law enforcement officers and other government officials participating in the investigation and prosecution of the criminal case against the defendant.

Doesn't this mean that federal prosecutors are generally required to seek our exculpatory information in the files of state agencies and state officers in any case investigated by state officers or a joint state-fed task force?  Sure, the Supreme Court's decision in Kyles v. Whitley, 514 U.S. 419 (1995), has required this along, but its refreshing to see it in print as official DOJ policy.  And doesn't this extend Henthorn to require the government to turn over impeachment material in the personnel files of its state officers who are expected to testify at trial?  I've been arguing that for years but have had limited success in getting federal prosecutors and judges to see it this way, with many taking the position that defense attorneys need to subpoena state officers' personnel files to obtain such impeachment. 

3. Witness Statement Variations and the Duty to Disclose:

Some witnesses’ statements will vary during the course of an interview or investigation. For example, they may initially deny involvement in criminal activity, and the information they provide may broaden or change considerably over the course of time, especially if there are a series of debriefings that occur over several days or weeks. Material variances in a witness’s statements should be memorialized, even if they are within the same interview, and they should be provided to the defense as Giglio information.

In my humble opinion, this is one area that can be overlooked by prosecutors, i.e., the failure to memorialize and disclose variances in witness interviews, especially when a witness provides inconsistent statements in a single debrief.

 4.   Disclosure of Brady Material:

Exculpatory information, regardless of whether the information is memorialized, must be disclosed to the defendant reasonably promptly after discovery. Impeachment information, which depends on the prosecutor’s decision on who is or may be called as a government witness, will typically be disclosed at a reasonable time before trial to allow the trial to proceed efficiently. See USAM §9-5.001. Section 9-5.001 also notes, however, that witness security, national security, or other issues may require that disclosures of impeachment information be made at a time and in a manner consistent with the policy embodied in the Jencks Act.

(Emphasis added).  How many times has a EDCA prosecutor waited until after a defendant rejects a plea deal or trial is confirmed before disclosing exculpatory material?  Where guilty pleas are obtained, are we getting exculpatory material at all?  Sure, some prosecutors provide early Brady disclosure, but not all.  With the exception of pure impeachment material, the DOJ memo explicitly requires disclosure "reasonably promptly" after the discovery of any exculpatory material.  Period.  Isn't this the way it should be?  Shouldn't the government turn over evidence of a defendant's innocence as soon as practicable?  At least that's my read.  Tell me if I'm wrong.