USA v. Garreau

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
CENTRAL DIVISION
UNITED STATES OF AMERICA,
Plaintiff,
vs.
ALLEN MICHAEL GARREAU,
Defendant.
3:21-CR-30050-RAL
MEMORANDUM OPINION
AND ORDER
What is the Due Process Protections Act (DPPA)1 and does it apply when a
criminal defendant is alleged to have violated pretrial release conditions? How about in
other revocation proceedings (such as those seeking to revoke adult and juvenile
supervision for violating conditions of a post-conviction/disposition judgment)—does
the DPPA apply to these proceedings? Because no court appears to have addressed the
scope of the DPPA and its applicability, this Court does so now.
BACKGROUND
Under Brady v. Maryland, “suppression by the prosecution of evidence favorable
to an accused upon request violates due process where the evidence is material either to
1Pub. L. No. 116-182, 134 Stat. 894 (2020).
Case 3:21-cr-30050-RAL Document 43 Filed 09/03/21 Page 1 of 10 PageID #: <pageID>

2
guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.”2
The Brady rule includes impeachment evidence as well as exculpatory evidence.3 “There
are three components to a true Brady violation: The evidence at issue must be favorable
to the accused either because it is exculpatory, or because it is impeaching; that
evidence 	must 	have 	been 	suppressed 	by 	the 	[prosecution], 	either 	willfully 	or
inadvertently; and prejudice must have ensued.”4 The prosecution has a duty under the
Due Process Clause to disclose such evidence even if the defendant makes no request
for it.5 And most courts have held that the prosecution must provide the defense with
exculpatory or impeachment evidence, even if that evidence would be inadmissible at
trial—as long as the evidence could have led to the discovery of admissible evidence.6
2373 U.S. 83, 87 (1963).
3Giglio v. United States, 405 U.S. 150, 154 (1972); see also United States v. Bagley, 473
U.S. 667, 675 (1985) (impeachment evidence, as well as exculpatory evidence, falls
within the Brady rule because such evidence favors an accused so that, if disclosed and
used effectively, it may make the difference between conviction and acquittal).
4Strickler v. Greene, 527 U.S. 263, 281-82 (1999).
5See, e.g., Turner v. United States, 137 S. Ct. 1885, 1893 (2017).
See, 	e.g., 	Gumm 	v. 	Mitchell, 	775 	F.3d 	345, 	363 	(6th 	Cir. 	2014) 	(“withheld
information is material under Brady [] if it would have…led directly to admissible
evidence,” explaining why the inadmissible information would have led to admissible
evidence in the case); Johnson v. Folino, 705 F.3d 117, 130 (3d Cir. 2013) (“[T]he
admissibility of the evidence itself is not dispositive for Brady purposes. Rather, the
inquiry is whether the undisclosed evidence is admissible itself or could have led to the
discovery of admissible evidence….”); United States v. Mahaffy, 693 F.3d 113, 131 (2d Cir.
(2012) (Brady violation for failure to disclose inadmissible hearsay because testimony
could have led to discovery of admissible testimony); United States v. Sipe, 388 F.3d 471,
(continued. . .)
Case 3:21-cr-30050-RAL Document 43 Filed 09/03/21 Page 2 of 10 PageID #: <pageID>

3
On October 21, 2020, the President signed into law the DPPA.7 The statute
amends Federal Rule of Criminal Procedure 5 by inserting a new provision—Rule 5(f)
— that requires federal courts “in all criminal proceedings, on the first scheduled court
date when both prosecutor and defense counsel are present,” to “issue an oral and
written order to prosecution and defense counsel that confirms the disclosure obligation
of the prosecutor under Brady … and its progeny, and the possible consequences of
violating such order under applicable law.” The statute also instructs that each judicial
council, in which a district court is located, formulate a model order implementing the
prosecution’s disclosure obligation.
The DPPA’s scant legislative history reveals that Congress decided, because of
“inadequate safeguards in Federal law,” to require Brady “reminder” orders to ensure
that prosecutors complied with their constitutionally mandated disclosure obligations.8
Representative Sheila Lee Jackson, a House Sponsor, pointed to the 2008 trial of then-
485 (5th Cir. 2004) (evidence may be material for Brady purposes even if inadmissible)
Ellsworth v. Warden, N.H. State Prison, 333 F.3d 1, 5 (1st Cir. 2003) (en banc) (a defendant
can establish a viable Brady claim by showing that withheld evidence, though itself
inadmissible, would have led to the discovery of material admissible evidence); Bradley
v. Nagle, 212 F.3d 559, 567 (11th Cir. 2000) (inadmissible information must be disclosed
if it “would have led the defense to some admissible material exculpatory evidence”);
but see Hoke v. Netherland, 92 F.3d 1350, 1356 n.3 (4th Cir. 1996) (inadmissible evidence,
as a matter of law, is ”immaterial” for Brady purposes).
7Pub. L. No. 116-182, 116th Cong., 2d Sess. (codified at Fed. R. Crim. P. 5(f)).
8166 Cong. Rec. H4582 (Sept. 21, 2020).
Case 3:21-cr-30050-RAL Document 43 Filed 09/03/21 Page 3 of 10 PageID #: <pageID>

4
Senator Ted Stevens as a “prominent example” of why such orders were needed.9 After
a jury found Senator Stevens guilty of seven counts of making false statements, the
district court set aside the verdict due to post-trial revelations that the government had
failed to disclose exculpatory evidence to the defense.10 The court though could not
impose 	contempt 	sanctions 	against 	prosecutors 	because 	it 	had 	never 	issued 	an
enforceable order directing them to abide by their Brady obligations.11 The DPPA seeks
to prevent similar outcomes and safeguarding a criminal defendant’s right to a fair trial.
DISCUSSION
A. Pretrial Release Revocations
The Court ordered Allen Michael Garreau, the criminal 	defendant in this
possession with intent to distribute a controlled substance (methamphetamine) case, to
appear after the probation office reported that he may have violated four conditions of
his pretrial release.12 Must the Court enter dual orders, under the DPPA and Rule 5(f),
at Garreau’s initial appearance on the revocation report? Or, put another way, is the
revocation proceeding a “criminal” one within the meaning of Rule 5(f) that requires
the Brady reminder and confirmation? The short answer to these questions is “no.”
9Id. at H4583.
10United States v. Stevens, No. 08-cr-231(EGS), 2019 WL 6525926 at *1 (D. D.C. Apr.
7, 2009), 2008 WL 8743218 at *1 (D. D.C. Dec. 19, 2008).
11
166 Cong. Rec. H4583.
12
Docket Nos. 37, 38.
Case 3:21-cr-30050-RAL Document 43 Filed 09/03/21 Page 4 of 10 PageID #: <pageID>

5
Revocations of adult pretrial releasees are governed by 18 U.S.C. § 3148, not Rule
5(f). The statute sets forth the procedure, and sanctions, for a person released under 18
U.S.C. § 3142 and violated a condition of release. § 3148, a specific statute found in the
Bail Reform Act,13 trumps Rule 5(f), a rule of general applicability, even if such
revocations are, or may be considered, “criminal proceedings.”
A separate set of laws exists for handling juveniles who are alleged to have
committed crimes. The Federal Juvenile Delinquency Act14 controls when a juvenile is
charged with delinquency. One of its provisions explicitly addresses pretrial release
matters.15 	Delinquency 	proceedings 	are 	not 	criminal 	because 	a 	juvenile 	is 	not
“convicted” of a crime like an adult but determined to be a juvenile delinquent. In other
words, an adjudication of juvenile delinquency results in a civil determination of status
rather than a criminal conviction.16
Now an argument could be made that the civil status of a delinquency case
should not be used to deprive a juvenile defendant of his/her due process rights. Even
so, the issue is not a constitutional one but simply whether Rule 5(f)’s reminder
mandate should be imposed in juvenile bond revocation proceedings. It should not.
1318 U.S.C. § 3141, et seq.
14
18 U.S.C. § 5031, et seq.
1518 U.S.C. § 5034.
16United States v. Gauld, 865 F.3d 1030, 1032-34 (8th Cir. 2017).
Case 3:21-cr-30050-RAL Document 43 Filed 09/03/21 Page 5 of 10 PageID #: <pageID>

6
And there is another reason why. The DPPA only amended Rule 5. Rule 1
categorically excludes juvenile delinquency proceedings from the federal criminal
rules.17 Rule 5(f) thus has no bearing on pretrial revocation proceedings in juvenile
cases.
B. Supervised Release and Probation Revocations
Courts that have addressed the issue appear to agree that the Brady rule does not
apply to adult post-conviction revocation proceedings.18
By its terms, the DPPA did not create any new or additional rights beyond those
already established in Brady. If the government has no Brady obligations in supervised
release or probation revocation proceedings, then there is no corresponding need for a
court to enter orders reminding the prosecution of its duty under Brady in such
proceedings.
17
Fed. R. Crim. P. 1(a)(5)(D).
See, e.g., United States v. Neal, 512 F.3d 427, 434-38 (7th Cir. 2008) (supervised
release); United States v. Ataya, 145 F. App’x 331, 333 n. 2 (11th Cir. 2005) (probation);
United States v. Nix, 2:08-cr-00283-RCJ-6, 2017 WL 2960520 at *2 (D. Nev. July 11,
2017)(supervised release); United States v. Jones, No. 5:14-cr-74-DCR, 2017 WL 278478 at
*1 (E.D. Ky. Jan. 20, 2017), objections overruled, 2017 WL 460811 (E.D. Ky. Feb. 2, 2017)
(supervised release); United States v. Gonzalez, No. 13-cr-424-WJM, 2016 WL 8458986 at
**2-4 (D. Colo. May 18, 2016)(supervised release); State v. Hemmes, 2007 ND 161, ¶¶ 5-9,
740 N.W. 2d 81, 83-85 (probation); State v. Hill, 368 S.C. 649, 654-59, 630 S.E. 2d 274, 277-
80 (2006) (probation); see also District Attorney’s Off. for Third Judicial Dist. v. Osborne, 557
U.S. 52, 69 (2009) (Brady is a “trial right,” and because the respondent had 	“already
been found guilty at a fair trial, … Brady is the wrong framework.”).
Case 3:21-cr-30050-RAL Document 43 Filed 09/03/21 Page 6 of 10 PageID #: <pageID>

7
Rule 5 exempts these revocation proceedings from its scope. The Rule directs that
Rule 32.1 applies “[i]f a defendant is arrested for violating probation or supervised
release.”19 When enacting the DPPA, Congress assuredly knew that Rule 32.1 governs
the procedures in post-conviction revocations and could have amended the Rule but
chose not to. Not doing so shows a desire, on the part of Congress, to confine the DPPA
and Rule 5(f) to criminal cases and not extend them to after-judgment revocations.
C. Juvenile Delinquent Supervision Revocations
In 	juvenile 	delinquency 	proceedings, 	a 	statute,20 	not 	the 	criminal 	rules,21
regulates post-disposition revocations. The relevant statute has no provision like or
similar to Rule 5(f) and does not incorporate either the DPPA or the Rule by reference.
D. Probation Office
Brady applies to prosecutors in the “guilt phase” of criminal proceedings.22 The
probation office is not a prosecutor.23 That office is part of the judiciary, a different
branch of government, and “serves as an investigative and supervisory arm of the
19
Fed. R. Crim. P. 5(a)(2)(B).
20See 18 U.S.C. §5037.
21See Fed. R. Crim. P. 1(a)(5)(D).
22Gonzalez 2016 WL 8458986 at *3.
23Id.
Case 3:21-cr-30050-RAL Document 43 Filed 09/03/21 Page 7 of 10 PageID #: <pageID>

8
court.”24 Disclosure under Brady, therefore, “is not compelled … if the [evidence is] in
the hands of … the probation office.”25 So if the probation office has most, if not all, of
the alleged violation evidence in its possession—as is typically the case in revocation
proceedings— then what practical reason is there for entering DPPA orders? There is
none.
E. 	“Countervailing Authority”
Supposed violators generally cite three cases in support of the entry of Brady
orders in revocations.26 None of these cases, however, are authoritative or useful in
discerning whether the DPPA and Rule 5(f) apply to proceedings held to revoke court-
imposed conditions.
United States v. Quiroz,27 an Eighth Circuit case, did not address the fundamental
question of whether Brady applied, or whether a defendant had a general right to all
exculpatory evidence in the context of a revocation proceeding.28 At most, the appeals
court’s brief rejection of the Brady claim amounted to avoiding a question the court did
24United States v. Davis, 151 F.3d 1304, 1306 (10th Cir. 1998) (quoting United States
v. Burnette, 980 F. Supp. 1429, 1433 (M.D. Ala. 1997)); see also Gonzalez, 2016 WL 8458986
at *3 (collecting cases).
25United States v. Zavala, 839 F.2d 523, 528 (9th Cir. 1998); United States v. Sanchez,
No. CIV-17-122-SLP, 2018 WL 11240477 at *1 (W.D. Okla. May 17, 2018).
26See Nix, 2017 WL 2960520 at *2.
27374 F.3d 682 (8th Cir. 2004).
28Neal, 512 F.3d at 436-37.
Case 3:21-cr-30050-RAL Document 43 Filed 09/03/21 Page 8 of 10 PageID #: <pageID>

9
not need to answer to decide the case.29 United States v. Dixon,30 a case in which the
district court created a special procedure for disclosing exculpatory evidence in a Rule
32.1 proceedings, is an outlier and has not been followed elsewhere.31 And United States
v. 	Ferrara,32 likewise 	has 	little, 	if 	any 	precedential 	value, 	because 	of 	its 	lack 	of
meaningful analysis and citation to, much less discussion of, Morrissey v. Brewer33 and
that decision’s offspring.34
CONCLUSION
The DPPA and Rule 5(f) are limited to criminal proceedings and do not apply to
ancillary 	revocations 	such 	as 	pretrial, 	supervised 	release, 	probation, 	or 	juvenile
delinquent supervision. Revocations of this kind are not criminal, are governed by a
particular statute or rule (that does not mention the DPPA and Rule 5(f)), and involve
evidence held by the probation office, the disclosure of which is not imperative under
Brady. This Court concludes that Congress did not intend to require the prosecution to
be 	reminded 	of 	its 	Brady 	obligation 	in 	the 	context 	of 	revocation 	proceedings.
29Gonzalez, 2016 WL 8458986 at *2 & n.1.
30
187 F. Supp. 2d 601 (S.D. W.Va. 2002).
31Gonzalez, 2016 WL 8458986 at *3.
32
No. 89-289-MLW, 2008 WL 2222033 (D. Mass., May 23, 2008).
33408 U.S. 471 (1972).
34Nix, 2017 WL 2960520 at *2.
Case 3:21-cr-30050-RAL Document 43 Filed 09/03/21 Page 9 of 10 PageID #: <pageID>

10
Accordingly, the Court will not issue Rule 5(f) reminder orders and admonishments in
adult and juvenile revocations, whether pre- or post-judgment.
IT IS SO ORDERED
Dated this 3rd day of September, 2021 at Pierre, South Dakota.
BY THE COURT:
MARK A. MORENO
UNITED STATES MAGISTRATE JUDGE
Case 3:21-cr-30050-RAL Document 43 Filed 09/03/21 Page 10 of 10 PageID #: <pageID>