USA v. Wells

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
UNITED STATES OF AMERICA
Plaintiff,
vs.
JAMES MICHAEL WELLS,
Defendants.
3:13-cr-00008-RRB-JDR
ORDER
REGARDING MOTION FOR
ORDER DIRECTING
GOVERNMENT TO PROVIDE
ADDITIONAL DISCOVERY
(Docket 105)
Defendant James Michael Wells moves for an order directing the
government to provide additional discovery, Docket 105. The government filed its
opposition/response at Docket 111. Wells filed his reply at Docket 127. The request
for oral argument raised in the reply is denied.
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General Discovery Requests pursuant to Rule 16.
1. 	The request for the defendant’s oral and written statements as
defined in Rule 16(a)(1)(A) and (B), Federal Rules of Criminal Procedure is granted.
Defendant’s statements including recordings of jail phone calls made by the
defendant be provided by the government to the defendant within ten days from the
date of this order.
2. 	The request for arrests reports and notes is denied. 	Federal
Criminal Rule 16(a)(2).
3. 	The request for dispatch tapes is granted.
4. 	The request for a written summary of any testimony that the
government intends to use under Federal Rules of Evidence 702, 703, or 705 during
its case-in-chief at trial is granted in accordance with the date for disclosure
established by the court in its prior pretrial order.
5. 	The request for reports of examinations and tests pursuant to
Federal Criminal Rule 16(a)(1)(F) is granted if the item is within the government’s
possession, custody or control or the attorney for the government knows or through
due diligence could know, that the items exists, and the item is material to preparing
the defense or the government intends to use the item in its case-in-chief at trial.
This includes fingerprint analysis, laboratory testing, reports of any physical
examinations, gunshot residue testing, and dog-sniff searches that are either
intended for use as evidence at trial, relied upon by the government to obtain a
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warrant, or constitute Brady material. 1
6. 	The request for the defendant’s prior criminal record, if any, is
granted. Rule 16(a)(1)(D), Federal Rules of Criminal Procedure.
7. 	The request for notice of any evidence of alleged crimes, wrongs
or other bad acts of the defendant the prosecution intends to offer in its case-in-chief
pursuant to Federal Rule of Evidence 404(b) is granted. The government has set
a date for production of 404(b) notices. The government should provide reasonable
notice of the general nature of any such evidence that it intends to offer at trial. The
notice shall include the nature of the incident, the date, time and place of the
incident, and the identity of persons having knowledge of such incident(s).
8. 	The request for documents and tangible objects is granted as
follows: 	the 	government 	shall 	permit 	the 	defendant 	to 	inspect 	and 	copy 	or
photograph 	books, 	papers, 	documents, 	data, 	photographs, 	tangible 	objects,
buildings or places, or copies or portions of any of these items, if the item is within
the government’s possession, custody or control and (1) the item is material to
preparation of the defense; (2) the government intends to use the item in its case-in-
chief at trial; or (3) the item was obtained from or belongs to the defendant. Federal
Criminal Rule 16(a)(1)(E). 	The request for immediate notice of the government’s
intention to use any such tangible evidence at trial is denied generally, but granted
1 With respect to gun powder residue tests the government states it has no
such samples and has done no such testing.
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with respect to such evidence that might reasonably be subject to a motion to
suppress or other pretrial challenge to the lawfulness of its use at trial.
The defendant’‘s request for information regarding video of trucks
similar to the defendant’s and for additional “other suspect” evidence as “material to
the preparation of the defense” under F.R.Cr.P. 16(a)(1)(E)(I) is granted as to video
and other tangible objections within the government’s possession, custody or control
(1) if is intended for use by the government in its case-in-chief; or (2) unavailable to
the defense through their own investigation, for example through searching public
records; or (3) if it may play an important role in uncovering admissible evidence, aid
in 	witness 	preparation 	or 	cross-examination, 	corroborate 	testimony 	or 	assist
impeachment or rebuttal. United States . Lloyd, 992 F.2d 348, 351 (D.C. Cir. 1993).
“What is material in preparing the defense” does not include all
information in the government’s investigation. 	The government is not required to
divulge its theory of the case. Relevant tangible objections do not belong to either
party.
The discoverability of the information under Rule 16 does not end the
inquiry. 	The defendant has also requested Brady information. 	The identity of a
similar looking vehicle may constitute Brady material. 	The government should
review this request under Brady pursuant to the broad discovery policy set forth in
the United States Attorney’s Manual 9-5.001 and United States v. Muniz-Jaquez,
718 F.3d 1180 (9 th Cir. 2013).
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Wells provides specific examples of discovery that he seeks pursuant
to Federal Criminal Rule 16(a)(1)(E)(i) because it is “material to preparing the
defense.” 	The court agrees that the government should provide as discovery the
following: Statements of the first responders to the crime scene; the physical location
where the decedents were first discovered and whether they were facing up or
facing down; the description of the medical therapies that were applied to the
decedents prior to them being pronounced dead; the clothing that the decedents
were wearing at the time of their demise; and the location of bullet fragments
discovered and recovered at the scene. This discovery is relevant to the defendant’s
obligation 	to 	investigate 	the 	forensics 	and 	ballistics 	in 	a 	shooting/homicide
prosecution.
Defense 	counsel 	states 	that 	it 	will 	not 	know 	whether 	requested
discovery also constitutes exculpatory material until they review it. Docket 127, p.7.
Sometimes discovery material may turn out to be exculpatory but that does not
mean that material under Criminal Rule 16 should be turned over to the defense
simply because it might turn out to be exculpatory material. 	Whether discovery
material will be materially exculpatory sometimes cannot be known until closer to the
trial date or during the trial itself when objections to testimony and evidence are
made, the nature of the defense is disclosed, what witnesses and evidence will
support the defense becomes evident, the record reflects what jury instructions the
court may be requested to give, and occasionally what questions the jury may pose
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during its deliberations. See United States v. Safavian, 233 F.R.D. 12, 16 (D.D.C.
2005).
The defendant requests that the government identity the owner and
operator of vehicles recorded on video on April 11 and 12, 2012. See Docket 127,
p.10,n.2. Identity of someone other than the defendant as the owner and/or driver
of the white pickup seen in the videos qualifies as exculpatory information because
this likely has a significant impact upon the defense(s) that may be offered at trial by
James Wells. Such information should therefore be disclosed to the defendant.
With 	the 	respect 	to 	the 	defendant’s 	other 	requests 	for 	suspect
information, the government should carefully review its investigation of other
suspects or potential suspects and disclose material exculpatory where there is a
reasonable probability that the effective use of the evidence could result in an
acquittal. 	See generally, United States v. Bagley, 475 U.S. 667, 676 (1985)
(Constitution requires disclosure where there is a reasonable probability that
effective use of the evidence will result in an acquittal). 	Because it is sometimes
difficult to access the materiality of evidence before trial, the prosecutor should take
a broad view of materiality and err on the side of disclosing exculpatory and
impeaching evidence. Kyles v. Whitley, 514 U.S. 437 (1995).
In the pretrial context the government should review “materiality” of
exculpatory information as evidence that may be “favorable to the accused” which,
if so, should be disclosed without regard to whether the failure to disclose it likely
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would affect the outcome of the upcoming trial. See Discussion in United States v.
Sudikoff, 36 F. Supp. 2d 1196, 1198-99 (C.D. CA 1999). 	The prosecutors are
directed to follow the Department of Justice’s own policies regarding what is
discoverable and disclose exculpatory or impeachment information “regardless of
whether the prosecutor believes such information will make a difference between
conviction and acquittal of the defendant for a charged crime.” 	USAM § 9-5.001.
Material favorable to the accused under Brady includes information in possession
of any executive branch agency that relates to guilt or punishment and that tends to
help the defense by either bolstering a defense case or impeaching potential
prosecution witnesses. 	United States v. Bagley, 473 U.S. 667, 676-77 (1985);
Sudikoff, supra at 1l99-1200.
Wells relies upon the prosecutor’s independent obligation to comply with
the ethical rules to provide timely disclosure of exculpatory information regardless
of the prosecutor’s assessment of its constitutionality materiality. Docket 127, pp.
22-27. 	The ABA Model Rule of Professional Conduct 3.8 (adopted in Alaska
pursuant to Alaska RPC 3.8(d)) requires a “prosecutor who knows of evidence and
information favorable to the defense to disclose it a soon as reasonably practicable
so that defense can make meaningful use of it in making such decisions as whether
to plead guilty and how to conduct its investigate.” Rule 3.8(d) is a rule of the Model
Rules of Professional Conduct. That rule requires that exculpatory information be
furnished “as soon as reasonably practicable” after the prosecution learns of the
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information. In the absence of a protective order the prosecution should turn over
this exculpatory information forthwith.
Should the prosecution conclude that there is a legitimate basis for
withholding evidence in the government’s possession that is favorable to the
accused then the prosecution should seek a protective order. See e.g., Acosta, 357
F. Supp. 2d at 1236. As noted by Wells’ attorneys, Rule 3.8(b) is more demanding
than the constitutional case law. 	The rule requires disclosure of evidence or
information favorable to the defense without regard to anticipated impact of the
evidence or information on the trial’s outcome.
9. 	The 	request 	for 	“information 	regarding 	informants 	and
cooperating witnesses” is overly broad. The government’s response states that it
[has] provide[d] to the defendant informant and cooperating witness information to
the defendant on August 23, 2013. 	The response further states that there were no
informant’s and no Title III wiretaps. 	While the Due Process Clause does not
necessarily require identification of an undercover informer, a general standard for
disclosure of an informant's identity is set forth in Roviaro v. United States, 353 U.S.
53 (1957), which states:
Where the disclosure of an informant's identity or the
contents of his communications is relevant and helpful to
the defense of an accused, or is essential to the fair
determination of a cause, the privilege must be waived. In
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these situations, the trial court may require disclosure and,
if the government withholds the information, dismiss the
action.
Id. at 60-61. 	See also Weatherford v. Bursey, 429 U.S. 545 (1977). 	Four
considerations are relevant with respect to disclosure. 	These are: 	(1) the crime
charged, (2) the possible defense, (3) the possible significance of the informant's
testimony, and (4) the other relevant factors.
The Ninth Circuit Court of Appeals recognizes that a "percipient
witness" must be disclosed. United States v. Cervantes, 542 F.2d 773, 775 (9th Cir.
1976). 	Disclosure is likewise mandated when an informant participated in events
that were critical to the prosecution's case. United States v. Hernandez, 608 F.2d
741, 744-45 (9th Cir. 1979). 	Where an informant's testimony is essential to a fair
determination, the government may be required to disclose his identity and address.
United States v. Roberts, 388 F.2d 646 (2nd Cir. 1968); see also United States v.
Anderson, 509 F.2d 724 (9th Cir. 1975).
The court has an obligation to determine whether there are any
undisclosed informers whose testimony would be helpful to the defense. 	United
States v. Cadet, 727 F.2d 1453 (9th Cir. 1984). Accordingly, the United States is
directed to submit by affidavit facts relating to the role of any informer in the
investigation and/or prosecution of a case in order that the court may balance the
defendant's need for the informer's identity with the public interest and the
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government's opposition to disclosure of the identity of any such person whose
information triggered the information that precipitated this prosecution. 	Compare
United States v. Ordonez, 737 F.2d 793 (9th Cir. 1984) (conducting of in camera
proceedings regarding disclosure of informant's identity is left to the discretion of the
trial court). United States v. Rawlinson, 487 F.2d 5 (9th Cir. 1973), cert. denied, 415
U.S. 984 (1974). 	The government shall produce such affidavit(s) within 30 days
from the date of this order.
10. 	The request for pretrial discovery of witness statements is denied
except as governed by the Jencks Act, 18 U.S.C. § 3500 and the timing of any
disclosure of Jencks Act material as determined by the court.
11. 	The request for notes of interviews is denied as overly broad.
The request does not identify who was interviewed or who conducted the interview.
Federal Criminal Rule 16(a)(2) provides that except as stated in Rule 16(a)(1), the
discovery or inspection of reports, memoranda, or other internal government
documents made by the attorney for the government or other government agent in
connection with the investigating or prosecution of this case is not authorized. This
includes 	the 	discovery 	or 	inspection 	of 	statements 	made 	by 	a 	prospective
government witnesses except as provided in the Jencks Act. 	However, the
government is directed to preserve any rough notes of interviews until the disposition
of this case and to review agent notes for information that must be disclosed
pursuant to F.R.Cr.P. 16(a)(1)(A)-(C) or may be discoverable under F.R.Cr.P.
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16(a)(1)(B). See United States v. Clark, 385 F.3d 609, 619-20 (6 th Cir. 2004).
12. 	The request for photographs used in any identification procedure
is granted. The government’s response states that it has already complied with this
request. The government states that it will provide discovery of any photos, videos,
diagrams, drawings, or measurements made in conjunction with an expert witness
according to the court’s schedule (presumably relating to expert witnesses).
13. 	The request for wire or other surveillance disclosures (page 8) is
granted.
14. 	The request for charts and summaries is vague. It also appears
to be redundant to the request for documents and objects previously addressed. The
government has agreed to produce charts and summaries two weeks prior to trial.
Except as otherwise provided the request is denied.
15. 	The request for discovery relating to “refreshing memory” is
vague. Said request is hereby denied.
16. 	The request for an exhibit list should be covered by the pretrial
order. 	The request for pretrial disclosure of an exhibit list otherwise is denied as
premature.
17. 	The request for a list of each prospective government witness for
trial is denied. The United States is not required to furnish defendant with the names
of its witnesses in a non-capital case. United States v. Dischner, 960 F,2d 870, 890
(9th Cir. 1997); 	United States v. Steele, 759 F.2d 706, 709 (9th Cir. 1985); United
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States v. Sukumolachan, 610 F.2d 685, 688 (9th Cir. 1980). The request for names
of persons who have given relevant information to the government about this case
whom the government does not intend to call as witnesses at trial is denied.
18. 	The request for the name and address of any witness to the
crime(s) charged regardless of whether they will be a government witness is
granted. This ruling addresses pretrial disclosure seeking discovery that does not
fall under Brady v. Maryland, 373 U.S. 83 (1963) or its progeny. The government
states that there were no eye witnesses to this crime.
19. 	The request for names and identity of law enforcement officers
who conducted the interrogation of Mr. Wells is granted. The request for the names
and identities of law enforcement officers who questioned other individuals is denied.
20. 	The request seeking reports of officers who conducted the
interrogation of Mr. Wells is granted in conformity with Rule 16(a)(1)(A) and (B)
addressing the defendant’s oral statements and written recorded statements. That
request is granted with respect to the substance of any relevant oral statement made
by the defendant if the government intends to use the oral statement at trial. It also
includes any relevant written or recorded statement by the defendant if the statement
is within the government’s possession, custody or control and the attorney for the
government knows or through due diligence could know that the statement exists.
The government shall also comply with the remainder of that rule.
21. 	The request for the names and contact information for individuals
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who were present at the scene on April 12, and April 13, 2012 during the time that
any interrogation was conducted is granted. 	The request for statements of other
individuals who were interrogated on April 12 and 13, 2012 is denied except as to
production under the Jencks Act.
22. 	The request for full statements of people whose statements were
used in an affidavit to support the issuance of a search warrant is granted in part and
denied in part. The government is directed to produce any portion of the statements
that relate to the topic or statement relied upon in each affidavit. This information is
pertinent to a review of whether the issuing magistrate or judge was provided an
accurate and fair representation of what the witness stated. 	The request is
otherwise denied.
23. 	The identity and contact information of any law enforcement
officer or other persons who were present at or who participated in the execution of
any search warrant related to this case is granted. 	The request for the reports of
officers participating in the execution of a search warrant is denied. Federal Criminal
Rule 16(a)(2).
24. 	The request for the identify and contact information of any law
enforcement officer or other person who participated in the search or seizure of any
property or the person of the defendant that the government claims was the result
of the defendant’s consent or the fruit of some exception to a warrant requirement
is granted. This ruling is not limited to searches for which the defendant may have
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standing to object. 	The request for the reports of such persons is denied. 	Rule
16(a)(2).
25. 	Where the items requested are specifically addressed in a pretrial
order that pretrial order shall govern as to the time for disclosure or production of
such discovery. To the extend not otherwise addressed the requests in the motion
for discovery are hereby denied.
26. 	The government has agreed to turn over Jencks Act material six
weeks prior to trial. The government states that it does not intend to turn over Brady
material that is contained within Jencks Act statements until it turns over the Jencks
Act material itself. 	This position appears to be too broad. 	The government is
reminded that Brady requires that exculpatory and impeaching information be turned
over to the defense at a time meaningful to its use. 	If the government has
exculpatory information it should be turned over immediately or brought to the
attention of the court for an in camera review. Information relevant only to possible
impeachment of a government witness may under the usual circumstance be
withheld until the production of Jencks Act material whereby the identity of the
potential government witness is disclosed.
27. 	The request for the government to undertake a review of
personnel files of any government witness including all law enforcement personnel
when the government intends to call to testify at trial is granted. 	Any exculpatory
information contained therein should be timely disclosed. 	The defendant cites
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United States v. Cadet, 727 F.2d 1453, 1467 (9th Cir. 1984) for the government’s
Brady obligation to produce favorable evidence in the personnel records of an
officer. The government’s response acknowledges it’s awareness of that obligation.
28. 	The request for Henthorn2 material to be disclosed as to any
witness to be called by the defense is denied since the defendant’s motion identifies
no such witness.
29. 	The request for the government to identify and provide contact
information for every person who entered the homicide scene on April 12 and April
13, 2012 until the Homicide scene was cleared is granted as to any such law
enforcement person. The request for the reports and logs of every such person is
denied. Federal Criminal Rule 16(a)(2).
30. 	The specific request for photographs, videos, etc., made at the
homicide scene is denied as redundant to the request previously made under
Federal Criminal Rule 16(a)(1)(E).
31. 	The request for production of forensic evaluation of every crime
scene and reconstruction is granted within the perimeters of Federal Criminal Rule
16(a)(1)(F).
32. 	The defendant’s Brady requests includes disclosure of “All
information, facts, documents, statements, agents reports, and tangible evidence in
anyway favorable to the defendant on the issue of guilt or punishment or which or
2 United States v. Henthorn, 931 F.2d 29 (9th Cir. 1991).
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might affect the credibility of the government’s theory of the case.” 	Docket 105,
p.15. The defendant’s discussion of Brady and its application shall serve to inform
the government of the extent of Brady material sought. With respect to the request
for specific Brady material the defendant is entitled to names of witnesses favorable
to the defendant, evidence that a government witness is biased or prejudiced against
the defendant, or has a motive to falsify or distort his or her testimony, any
information that a government witness has engaged in or been investigated for any
criminal act regardless of conviction or that the witness has been under investigation
by federal, state or local authorities for criminal conduct, statements and/or
promises, express or implied made to any government witness, in exchange for
testimony in this case, information such as medical or psychiatric reports or
evaluations tending to show that the ability of any prospective government witness
to perceive, remember, communicate, or tell the truth, is or was impaired.
33. 	The defendant’s repetitive discovery request contained on pages
21-22 are denied as redundant.
34. 	The request for video feed and security logs (page 22) are
granted. Such evidence appears to be in the sole custody of the government and
therefore should be made available to the defendant for his examination.
35. 	The request for disclosure of ownership and contact information
for all vehicles on Kodiak Island investigated by officers in this case is denied except
as the government has agreed to produce. 	There is no evidence that the
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government has taken any steps to prevent the defense from obtaining such
information on their own. The government need not disclose its theory of the case
in pretrial discovery. Although the government is required to produce the video of
the white pickup truck seen on the designated times and dates it need not provide
contact information on such vehicle(s) as the government’s determination of the
ownership or identity of the driver falls within the work product of the government.
DATED this 11th day of September, 2013, at Anchorage, Alaska.
/s/ John D. Roberts
JOHN D. ROBERTS
United States Magistrate Judge
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