federal district court, united states' objection to defendant riley's motion for discovery
TRANSCRIPT
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8/14/2019 Federal District Court, United States' Objection to Defendant Riley's Motion for Discovery
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UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
United States of America
v. Cr. No. 07-189-01-GZS
Daniel Riley, et al.
UNITED STATES' OBJECTION TO
DEFENDANT RILEY'S MOTION FOR DISCOVERY (Docket #237)
The United States of America objects to defendant Daniel
Rileys Motion for Discovery (docket #237) as follows.
As a preliminary matter, the government has engaged in
virtually open file discovery. Pursuant to Federal Rules of
Criminal Procedure, 12.1, 16 and 26.2, Brady v. Maryland, 373
U.S. 83, 84-87 (1963), and Giglio v. United States, 405 U.S. 150
(1978), and their progeny, the government has already disclosed
to the defendant all discoverable material in its possession and
it will continue to disclose material as it becomes available.
To the extent any Jencks Act material has not already been
disclosed it will be disclosed no later than one week before
trial.
The government has attempted to identify and respond to
each request made by the defendant and will address the
defendants request in the order he has raised them.
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When co-defendant Gerhard was arrested a video tape was1
made of him in which he did not speak. That video has already
been disclosed.
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Defendant Rileys Requests
Paragraph 3
At paragraph 3 the defendant seeks all notes of agents at
his three proffer sessions as well as any recordings made. No
recordings were made. The defendant has already been provided
with copies of the reports prepared of each of the three proffer
sessions, which satisfies Rule 16(A)(1)(a). The handwritten
notes of United States Marshals Service (USMS) personnel present
have not been disclosed but to avoid unnecessary wrangling the
government will produce the handwritten notes. This request is
moot.
Paragraph 4
At paragraph 4 the defendant seeks information similar to
that requested in paragraph 3 but with respect to interviews of
others, including co-defendants and unindicted co-conspirators.
Co-defendant Robert Wolffe was interviewed twice. No interviews
were recorded. The reports of those interviews have been1
disclosed. The handwritten notes of USMS personnel present
during the interviews have not been disclosed but to avoid
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unnecessary wrangling the government will produce the
handwritten notes.
The other two co-defendants have not been interviewed. As
to other people interviewed, all interview reports have been
disclosed. This request is moot.
Paragraphs 5, 6, 7 & 8
At paragraphs 5 through 8 the defendant seeks a photograph
that was identified as being of defendant Riley and others in
the original Indictment. In subsequent Indictments the
photograph at issue has been appropriately identified as
depicting persons other than defendant Riley. This request is
moot.
Paragraph 9
At paragraph 9 the defendant seeks numerous items,
including handwritten notes, training records, disciplinary
records, interviews of neighbors of the Browns, in and around
June 6 & 7, 2007 relating to certain named USMS personnel and
all other government agents. He also seeks the type and serial
number of firearms issued to members of the USMS.
All reports of interview have been disclosed. As to the
remainder of the request, the government objects because the
defendant's request exceeds the requirements of disclosure
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within the meaning of Brady v. Maryland, 373 U.S. 83 (1963),
Giglio v. United States, 405 U.S. 150 (1972), United States v.
Agurs, 427 U.S. 97 (1976), and United States v. Bagley, 473 U.S.
667 (1985). A defendants request for discovery must be, among
other things, specific. See e.g. U.S. v. Price, 75 F.3d 1440,
1444-45 (10 Cir. 1996)(discovery denied because motionth
contained only bare references and were entirely without
detail); U.S. v. Jordan, 316 F.3d 1215, 1250 (11 Cir.th
2003)(discovery demand denied because overly vague; defendant
must make a specific request for an item and explain how it
will benefit defense).
The defendant does not allege any legal justification, any
factual basis, or necessity for his excessive demand for such
information. Brady is not a rule of pretrial discovery.
Rather, the purpose of Brady is to prohibit the prosecution from
intentionally withholding evidence favorable to the defendant
which if suppressed would deprive the defendant of a fair trial.
United States v. Valencia-Lucena, 925 F.2d 506, 514 (1st Cir.
1991) (quoting United States v. Bagley, 473 U.S. at 675).
Nevertheless, the government has disclosed, and will
continue to disclose, any and all exculpatory material in
advance of trial, as required. In the event the government is
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unsure whether certain material or information constitutes
exculpatory evidence and it does not disclose it to the
defendant, it will submit such material or information to the
Court for in camera review.
As to rough notes, training records, and disciplinary
records the government objects as defendant's request exceeds
the scope of Fed. R. Crim. P. 16(a)(1). Indeed, such a request
is specifically excluded under Fed. R. Crim. P. 16(a)(2). See
Fed. R. Crim. P. 16(a)(2) ("this rule does not authorize the
discovery or inspection of reports, memoranda, or other
government documents made by . . . government agents in
connection with the investigation or prosecution of the case").
See also Campbell v. United States, 296 F.2d 527, 531-32 (1st
Cir. 1961) (Court rejected suggestion that F.B.I. had a duty to
preserve notes).
Additionally, the government objects to the disclosure of
any information that identifies the make, model or serial number
of any USMS, or other law enforcement agency, firearms,
ammunition or non-lethal weapon on the ground that such
disclosure would reveal privileged sensitive law enforcement
information. Particularly in this case, given the nature of the
charges which include conspiracy to use force and violence
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against federal law enforcement officers, disclosing weapons and
munitions information of federal law enforcement would be
dangerous.
Paragraph 10
At paragraph 10 the defendant seeks notes, training
records, disciplinary records, and other reports from any of
the government agents in and around the Browns[] property on
July 28 & 29, 2007. The government objects because the request
is vague and overly broad. The defendant has not identified
legally, or factually, any theory under which he would be
entitled to that which he seeks. The government incorporates by
reference its objections in prior and subsequent paragraphs, to
the extent they are applicable here.
Paragraphs 11, 12, 13 & 14
At paragraphs 11 through 14 the defendant seeks information
relating to a helicopter owned by the United States Department
of Homeland Security that was flown on July 14, 2007 in the
vicinity of the Brown residence. He specifically seeks the
names of individuals who flew and/or were in the helicopter,
handwritten notes by any government agent concerning this
helicopter (Motion @ 11), as well as the year, make model and
any modifications made, and any weapons on board (physically
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attached to the helicopter or on a person inside the helicopter)
... (Motion @ 13) as well as information concerning any
recording devices and any video, pictures or audio which may
have been created.
Certain limited video recordings were made from that
helicopter and they have recently been produced.
These requests are vague, overly broad, and exceed any
requirements of disclosure. The defendant has not identified
legally, or factually, any theory under which he would be
entitled to that which he seeks. The government incorporates by
reference its objections in prior and subsequent paragraphs, to
the extent they are applicable.
Additionally, the government objects to the disclosure of
any information that identifies the make, model or serial number
of any USMS, or other law enforcement agency, firearm,
ammunition or non-lethal weapon on the ground that such
disclosure would reveal privileged sensitive law enforcement
information. Particularly in this case, given the nature of the
charges which include conspiracy to use force and violence
against federal law enforcement officers, disclosing weapons and
munitions information of federal law enforcement would be
dangerous.
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Paragraph 15
At paragraph 15 the defendant seeks rough notes and police
reports from any law enforcement agencies that worked with the
federal law enforcement in attempts to apprehend the Browns.
These requests are vague, overly broad, and exceed any
requirements of disclosure. He has not identified legally, or
factually, any theory under which he would be entitled to that
which he seeks. The government incorporates by reference its
objections in prior and subsequent paragraphs, to the extent
they are applicable here.
Paragraph 16
At paragraph 16 the defendant seeks information concerning
payments to local or state law enforcement agencies relating to
the apprehension efforts of the Browns. This request is vague,
overly broad, and exceeds any requirements of disclosure. The
defendant has not identified legally, or factually, any theory
under which he would be entitled to that which he seeks. The
government incorporates by reference its objections in prior and
subsequent paragraphs to the extent they are applicable.
Additionally, and without implying that there will be, if any
government witness at trial works for a local or state agency
that received any reimbursement from the USMS for services
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Due to technical problems the camera at issue was used2
more as a transmitter than as a recording device. A live feed
was sent from the camera to a remote location where the live
feed was at times monitored, but often times not recorded.
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rendered, such will be disclosed as potential impeachment
material.
Paragraph 18
At paragraph 18 the defendant seeks video from a camera
which had been located near the intersection of the Brown
driveway and Center of Town Road. To the limited extent that
such video exists, it has already been recently disclosed. The
government is in the process of retrieving the hard drive from
that camera so that it can be examined to determine if there is
any additional video contained therein. If so, it too will be
disclosed. This request is moot.2
Local Rule regarding Discovery Motions
United States District Court for the District of New
Hampshire, Local Rule 16.3, Motions Seeking Routine Discovery,
states [n]o motion seeking discovery covered by LCrR 16.1 shall
be filed unless the opposing party has failed to comply with a
written request for the discovery sought by the motion.
Conclusion
Whereas the defendant has failed to identify any discovery
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material to which he is entitled that has not already been
disclosed, and whereas the government has complied, and will
continue to comply, with all of its discovery obligations and
will produce handwritten notes, and whereas the defendant has
failed to comply with Local Rule 16.3, the government
respectfully requests that the Court deny the defendants Motion
for Discovery.
February 12, 2008 Respectfully submitted,
THOMAS P. COLANTUONO
United States Attorney
By: /s/ Arnold H. Huftalen
Arnold H. Huftalen
Assistant U.S. Attorney
N.H. Bar Assoc. No. 1215
53 Pleasant Street, 4th Floor
Concord, New Hampshire 03301
(603) 225-1552
CERTIFICATION OF SERVICE
I hereby certify that service is being made upon all counsel
of record, via ecf filing notice, and that service is being made
upon defendant Daniel Riley via US Mail.
/s/ Arnold H. Huftalen
Arnold H. Huftalen
Assistant U.S. Attorney