USA v. Fuhrer et al

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
United States v. Filthy Fuhrer, et al.
Case No. 3:19-cr-00026-TMB-DMS
By: 	THE HONORABLE TIMOTHY M. BURGESS
PROCEEDINGS: 	ORDER FROM CHAMBERS
The matter comes before the Court on an Objection to Order Regarding Delayed Production of
Giglio Material (“Objection”) filed by Defendant Colter O’Dell and joined by Defendants Glen
Baldwin, Craig King, and Filthy Fuhrer (collectively, “Defendants”).1 Defendants broadly object
to the delayed production of Giglio materials, arguing that impeachment evidence under Giglio is
subject to prompt disclosure as a “sub-set of exculpatory evidence under Brady.”2 For the reasons
discussed below, Defendants’ Objection is OVERRULED.
On August 12, 2019, the assigned Magistrate Judge held an ex parte hearing on the Government’s
request to delay production of Giglio material.3 During the hearing, the Government provided
evidence of threats and retaliation against eleven witnesses associated with the case. Based on that
evidence, the Magistrate Judge found “good cause to delay the production of impeachment
material to ensure witness safety and a fair and impartial trial” and granted delayed production
(“Order”).4 For certain witnesses, the Government was ordered to provide all Giglio material at
least ten days before the start of trial.5 For other witnesses, whose security could be reasonably
assured, the Magistrate Judge ordered Giglio disclosure dates “August 26‒October 14, 2019.”6
Defendants filed the Objection a week after the Magistrate Judge issued the Order.7 The
Government filed a Reply, which argues that deferral is appropriate and furthermore, the
Government has disclosed certain Jencks Act and Giglio material for the primary cooperating
witnesses.8 Defendants also moved for subpoenas requiring production of evidence, compelling
1 Dkts. 261 (Objection); 262 (Notice of Joinder).
2 Dkt. 261 at 4‒5 (citing Brady v. Maryland, 373 U.S. 83 (1963); Giglio v. United States, 405 U.S.
150 (1972); United States v. Bagley, 473 U.S. 667 (1985)).
3 Dkts. 230 (Ex Parte Document); 236 (Minute Entry).
4 Dkt. 259 (Order).
5 Id. at 2.
6 Id.
7 Dkt. 261.
8 Dkt. 265 (Reply).
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discovery, and in camera review of confidential reports.9 The Magistrate Judge denied issuing
subpoenas or compelling discovery but granted in camera review.10
In the meantime, the jury trial was reset to begin on September 8, 2020.11 The Magistrate Judge
then held another hearing regarding the delayed production of Giglio material and issued an
Amended Order Regarding Delayed Production of Giglio Material (“Amended Order”).12 The
Amended Order set the new disclosure deadline by August 27, 2020, twelve days before the start
of trial.13 The Amended Order acknowledged that certain disclosures were being reviewed in
camera and that the Government has a continuing duty to produce Brady and Giglio material or
seek additional in camera review.14
On November 14, 2019, Defendants were directed to file a status report regarding whether any
objections remain in light of the Amended Order.15 Defendants maintain their objection “to the
differential treatment of impeachment evidence (Giglio materials) and more broadly exculpatory
evidence (Brady materials) and the intentionally delayed production of the former.”16
Thereafter, on December 6, 2019, the Magistrate Judge issued a Second Amended Order
Regarding Delayed Production of Giglio Material (“Second Amended Order”), which addressed
Defendants’ reading that the prior Orders created a distinction between Brady and Giglio
material.17 The Second Amended Order clarified that both Brady and Giglio material at issue in
this case must be produced prior to trial but otherwise relied on several Ninth Circuit cases that
provide trial courts wide latitude in determining the timing of disclosures.18 However, the Second
Amended Order also recognized, through in camera review, that the Giglio material at issue may
include voluminous reports for multiple witnesses.19 As a result, the deadlines for production for
seven of the eleven witnesses were reset to thirty days before trial.20 The August 27, 2020 deadline
remained in place for four witnesses, due to safety concerns.21
9 Dkts. 264 (Ex Parte Motion for Subpoenas); 267 (Motion for Discovery); 281 (Motion to
Compel).
10 Dkts. 297 (Order); 311 (Order); 320 (Order).
11 Dkt. 277 (Minute Entry).
12 Dkts. 279 (Minute Entry); 299 (Amended Order).
13 Dkt. 299 at 2.
14 Id. at 2‒3.
15 Dkt. 305 (Text Order).
16 Dkt. 307 at 2 (Status Report).
17 Dkt. 323 (Second Amended Order).
18 Id. at 4‒5.
19 Id. at 6‒7.
20 Id.
21 Id.
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In an updated status report, following the Second Amended Order, Defendants reiterate that their
original Objection still stands.22 The Government’s recent production contained only three pages
of additional Giglio material.23
Federal Rule of Criminal Procedure 59(a) permits parties to serve and file objections to a
nondispositive order by a magistrate judge. “The district judge must consider timely objections
and modify or set aside any part of the order that is contrary to law or clearly erroneous.”24
“Under Brady, the suppression by the prosecution of evidence favorable to an accused upon
request violates due process where the evidence is material either to guilt or innocence.”25
Favorable evidence includes impeachment evidence pursuant to Giglio.26 The disclosure of such
evidence “‘must be made at a time when disclosure would be of value to the accused’” but “Brady
does not necessarily require that the prosecution turn over exculpatory material before trial.”27
“Rather, the relevant inquiry is whether the disclosure, when made, was still of value to the
accused.”28
In this case, the Second Amended Order is not contrary to law or clearly erroneous. The
Government has been ordered to produce its Giglio material more than ten days in advance of trial,
with the majority of disclosure due a month before trial. This timeframe is well within the Court’s
discretion and not a clear violation of Brady or Ninth Circuit caselaw interpreting Brady.29
Furthermore, Defendants have not provided any authority establishing an alternative timeline, nor
have they argued why the Magistrate Judge’s timeline for disclosure nullifies the value of the
information to be disclosed.30 Given that the material will be made available to Defendants before
trial and Defendants will have the opportunity to use the evidence at trial, there is no prejudice to
the defense.31 Therefore, the disclosure deadlines set by the Second Amended Order still offer
value to Defendants.
Accordingly, the Objection is OVERRULED. The Parties are ORDERED to observe the
deadlines as set by the Second Amended Order. To the extent the Government has additional
22 Dkt. 341 (Status Report).
23 Id. at 2.
24 Fed. R. Crim. P. 59(a).
25 United States v. Gordon, 844 F.2d 1397, 1403 (9th Cir. 1988) (citing Brady, 373 U.S. at 87).
26 Id. (citing Giglio, 405 U.S. at 154).
27 Id. (quoting United States v. Davenport, 753 F.2d 1460, 1462 (9th Cir. 1985) (emphasis in
original)); United States v. Aichele, 941 F.2d 761, 764 (9th Cir. 1991). See also United States v.
Woodley, 9 F.3d 774 (9th Cir. 1993) (rejecting a Brady claim where potentially exculpatory
material was disclosed ten days before and during trial).
28 United States v. Purry, 702 Fed.App’x. 511, 514 (9th Cir. 2017) (citing Aichele, 941 F.2d at
764).
29 See Woodley, 9 F.3d at 777.
30 See Dkts. 307; 341.
31 Aichele, 941 F.2d at 764.
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Giglio material related to the five primary witnesses,32 that information must be produced by no
later than February 25, 2020.
Entered at the direction of the Honorable Timothy M. Burgess, United States District Judge.
DATE: February 18, 2020.
32 See Dkt. 323 at 2 (describing “[t]hese witnesses are in a situation where their security can be
reasonably assured.”).
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