Free Motion for Discovery - District Court of California - California

Case 3:07-cr-00348-BZ

Document 12

Filed 07/25/2007

Page 1 of 11

1 ROBERT M. AMPARAN (172132)

506 Broadway
2 San Francisco CA 94133

Telephone: 415/986-5591
3

Attorneys for Defendant
4 ROBERT MINEMIER 5 6 7 8 9

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION

UNITED STATES OF AMERICA,
10

CR-07-0348 MAG NOTICE OF MOTION AND MOTION FOR REVIEW OF PERSONNEL FILES AND DISCLOSURE OF POTENTIAL IMPEACHMENT EVIDENCE [UNITED STATES v. HENTHORN]
[Excludable Time: 18 U.S.C. §3161(h)(1)(F) & (J) through disposition]

Plaintiff,
11 12 13

v. ROBERT MINEMIER,

14

Defendant.
15

Date: August 8, 2007 Time: 1:30 p.m.

_________________________/
16 17 TO THE CLERK OF THE ABOVE-ENTITLED COURT AND TO THE UNITED

STATES ATTORNEY FOR THE NORTHERN DISTRICT OF CALIFORNIA:
18

Defendant ROBERT MINEMIER, by and through counsel, will and
19

hereby does move the Court for an order for discovery of the
20

personnel files and related records of selected law enforcement
21

agents employed by the United States Park Police who detained
22

and arrested Mr. Minemier.
23 24

Defendant seeks all records and

information which pertain to any instance of conduct which might arguably reflect on the agents' character or credibility or
25

which might arguably be used to develop impeachment information.
26

This includes, but is not limited to, all instances involving
27
LAW OFFICES
506 BROADW AY SAN FRANCISCO (415) 986-5591 Fax: (415) 421-1331

allegations, complaints or acts of:
28

(1)

false arrests; 1

Case 3:07-cr-00348-BZ

Document 12

Filed 07/25/2007

Page 2 of 11

1 2 3 4

(2) (3) (4) (5)

fabrication of charges; fabrication of evidence; unreasonable/illegal searches and seizures under the Fourth Amendment to the United States Constitution; undue coercion and Miranda violations; dishonesty; improper tactics; neglect of duty; prior drug usage; and any other instance of conduct reflecting on credibility, veracity or potential bias.

5

(6)
6

(7)
7

(7)
8

(8)
9

(9)
10 11

The information sought by defendant concerning such

12 allegations, complaints or acts includes, but is not limited to, 13 the following: 14 15 16 17 18

(1)

The names, addresses and telephone numbers of persons who submitted any of the allegations or complaints described above; The names, addresses, and telephone numbers of all persons, whether police officers or private witnesses, mentioned as witnesses to the events described in the allegations, complaints or acts described above; A copy of all statements made by the complainants and all witnesses who were interviewed in the investigation of the allegations, complaints or acts described above; A copy of all statements made by the officers/agents interviewed in the investigation of the allegations, complaints or acts described above; Verbatim copies of all other records, reports, notes and recordings made, and copies of photographs taken, in the course of the investigation of the allegations, complaints or acts described above; All agency records and statements of opinion about the agents' reputation relevant to the allegations, complaints or acts described above, including, but not limited to, findings, letters, formal reports, comments, evaluations, assessments, disciplines imposed, and/or records of conversations involving superiors or fellow agents of the personnel listed 2

(2)

(3)
19 20 21 22 23 24 25

(4)

(5)

(6)
26 27
LAW OFFICES
506 BROADW AY SAN FRANCISCO (415) 986-5591 Fax: (415) 421-1331

28

Case 3:07-cr-00348-BZ

Document 12

Filed 07/25/2007

Page 3 of 11

1 2

herein pertaining to any of the actions noted in the allegations, complaints or acts described; and (7) All documents, reports, files, folders, and other documentary material regarding any ongoing investigations being conducted by any entity within the relevant department/agency or the relevant Office of Citizen Complaints related to the allegations, complaints or acts referenced above.

3 4 5 6

Defendant Robert Minemier further requests that he be

7 apprised of any information which tends to show that the 8 information contained in any of the allegations, complaints or 9 acts described above is no longer current, valid or complete. 10

This motion is made on the grounds that the personnel files

11 of the law enforcement agents who investigated this case and who 12 have percipient knowledge and therefore may be called to testify 13 for the prosecution or the defense, are discoverable under the 14 Due Process Clause of the Fifth and Fourteenth Amendments and 15 applicable case law, including Brady v. Maryland, 373 U.S. 83 16 (1963); Kyles v. Whitley, 514 U.S. 419 (1995); and United States 17 v. Henthorn, 931 F.2d 29 (9th Cir. 1991) and their progeny, to 18 the extent that they contain exculpatory information and/or 19 information tending to impeach the credibility of the officers. 20 In camera review by the Court is appropriate. 21

This motion is supported by the accompanying Memorandum of

22 Points and Authorities, the files and records in this case, and 23 any further argument and evidence which may be presented at the 24 time of the hearing of this motion. 25 26 27
LAW OFFICES
506 BROADW AY SAN FRANCISCO (415) 986-5591 Fax: (415) 421-1331

Dated: July 25, 2007 /s/ ROBERT M. AMPARAN ROBERT M. AMPARAN Attorney for Defendant ROBERT MINEMIER

28

3

Case 3:07-cr-00348-BZ

Document 12

Filed 07/25/2007

Page 4 of 11

1 ROBERT M. AMPARAN (172132)

506 Broadway
2 San Francisco CA 94133

Telephone: 415/986-5591
3

Attorneys for Defendant
4 ROBERT MINEMIER 5 6 7 8 9 10 UNITED STATES OF AMERICA, 11 12

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION

CR 07-0348 MAG MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR REVIEW OF PERSONNEL FILES AND DISCLOSURE OF POTENTIAL IMPEACHMENT EVIDENCE [UNITED STATES v. HENTHORN]

Plaintiff, v.

13 ROBERT MINEMIER, 14 15 16 17

Defendants. ____________________________/ INTRODUCTION This motion asks the Court to order the prosecution to

18 submit to the Court for review all personnel files of all law 19 enforcement agents who detained, investigated, and/or arrested 20 Mr. Minemier.

The motion further requests that all information

21 relevant to the credibility of these agents or that would 22 otherwise lead to potentially exculpatory evidence be turned 23 over to the defense1. 24

As discussed further below, the defense is entitled to

25 request the Court to undertake an in camera review of each of 26 the below-listed agents' personnel files to determine whether 27
LAW OFFICES
506 BROADW AY SAN FRANCISCO (415) 986-5591 Fax: (415) 421-1331

28

This information can be turned over pursuant to a protective order specifically limiting its future use. 1

1

Case 3:07-cr-00348-BZ

Document 12

Filed 07/25/2007

Page 5 of 11

1 exculpatory or impeaching information in those personnel files 2 must be disclosed to the defense in order to protect the due 3 process rights of the defendants.

The task implicated by this

4 motion is necessary to assure these rights are protected. 5

Based on the government's disclosures, Mr. Minemier has

6 identified the following federal law enforcement agent as likely 7 to testify as a government witness at trial: 8 9

1.

United States Park Police Officer Michael Cameron, Officer #212, San Francisco Field Office.

Defendant also respectfully reserves the right to
10

specifically identify further law enforcement officers that he
11

discovers are likely to testify as government witnesses in this
12

case.
13 14

This request includes the request for production of the

specific information described herein and recited in the Motion filed herewith, and any other information which may possibly be
15

helpful to the defense in this case.
16

ARGUMENT
17 18 19

DEFENDANT IS ENTITLED TO ALL RECORDS AND INFORMATION RELEVANT TO THE IMPEACHMENT OF THE INVESTIGATING AGENTS The information sought by this motion is relevant to

20

impeach the testimony and credibility of agents and/or officers
21

who will be witnesses in this case at a potential suppression
22

hearings or trial, to prove character traits of the agents in
23

question, to establish their bias, and to prove their conduct,
24

custom, propensity and habit in conformity with such traits.
25

The Due Process Clause of the Fifth Amendment requires the
26

government to produce exculpatory evidence to the defendant.
27
LAW OFFICES
506 BROADW AY SAN FRANCISCO (415) 986-5591 Fax: (415) 421-1331

See, e.g., Kyles v. Whitley, 514 U.S. 419, 432-34 (1995); Brady
28

v. Maryland, 373 U.S. 83 (1963); Giglio v. United States, 405 2

Case 3:07-cr-00348-BZ

Document 12

Filed 07/25/2007

Page 6 of 11

1 U.S. 150 (1972).

Exculpatory evidence includes all evidence United Thus,

2 which bears on witness' credibility or reliability.

3 States v. Feola, 651 F.Supp. 1068, 1135 (S.D.N.Y. 1987).

4 the law requires that defendants be provided with information 5 regarding all prior material acts of misconduct by the govern6 ment witnesses.

See, e.g., Singh v. Prutny, 142 F.3d 1157 (9th

7 Cir. 1998), cert. denied, 525 U.S. 956 (1998); United States v. 8 Siejo, 514 F.3d 1357 (2nd Cir. 1975), cert. denied, 429 U.S. 9 1043 (1977); United States v. Rosner, 516 F.2d 269 (2nd Cir. 10 1975), cert. denied, 427 U.S. 911 (1976). 11

Disclosure of impeachment information is necessary to

12 protect the right of a defendant to confront, cross-examine, and 13 impeach; this right is a cherished one and remains "the 14 principal means by which the believability of a witness and the 15 truth of his [or her] testimony are tested." 16 415 U.S. 308, 316 (1974). 17

Davis v. Alaska,

The Ninth Circuit has noted that the scope of the Brady

18 doctrine is broad, having been interpreted to compel the 19 "disclosure of evidence that in any way may be exculpatory." 20 United States v. Miller, 529 F.2d 1125, 1128 (9th Cir.), cert. 21 denied, 426 US. 924 (1976)(emphasis in original). 22

In United States v. Agurs, 427 U.S. 97, 108 (1976), the

23 Supreme Court warned prosecutors that if any errors are to be 24 made, they should be made on the side of disclosure: 25 26 27
LAW OFFICES
506 BROADW AY SAN FRANCISCO (415) 986-5591 Fax: (415) 421-1331

28

Because we are dealing with an inevitably imprecise standard, and because the significance of an item of evidence can seldom be predicted accurately until the entire record is complete, the prudent prosecutor [or court] will resolve doubtful questions in favor of disclosure.

3

Case 3:07-cr-00348-BZ

Document 12

Filed 07/25/2007

Page 7 of 11

1

In Kyles, 514 U.S. 419, the Supreme Court again reminded

2 prosecutors that convictions will be reversed under Brady, 3 unless prosecutors use a broader standard of "materiality" than 4 prosecutors have employed. The Kyles court emphasized that an 5 important type of exculpatory evidence is evidence which can be 6 used to attack "the thoroughness and even the good faith of the 7 investigation."

The court specifically recognized that "A

8 common trial tactic of defense lawyers is to discredit the 9 caliber of the investigation or the decision to charge the 10 defendant, and we may consider such use in assessing a possible 11 Brady violation." 12

In United States v. Cadet, 727 F.2d 1453, 1467-68 (9th Cir.

13 1984), the Ninth Circuit held that the government must review 14 agents' personnel files and disclose information which may tend 15 to impeach law enforcement agents to the defense. Id. at 146716 68.

The Ninth Circuit set forth the procedure the prosecution

17 must follow when confronted with a request by a defendant for 18 the personnel files of testifying officers.

The Cadet Court

19 stated that the government must "disclose information favorable 20 to the defense that meets the appropriate standard of material21 ity ... If the prosecution is uncertain about the materiality of 22 information within its possession, it may submit the information 23 to the trial court for an in camera inspection and evalua24 tion..." 25

Id. at 1467-68.

In United States v. Henthorn, 931 F.2d 29 (9th Cir. 1991),

26 cert. denied, 503 U.S. 972, the defendant made a discovery 27 request for impeachment material contained in the personnel
LAW OFFICES
506 BROADW AY SAN FRANCISCO (415) 986-5591 Fax: (415) 421-1331

28 files of testifying officers.

The attorney for the United

4

Case 3:07-cr-00348-BZ

Document 12

Filed 07/25/2007

Page 8 of 11

1 States refused to follow Cadet and opposed the request. 2 United States argued that it had no duty to examine the 3 personnel files until the defendant made a showing that

The

4 instances of specific misconduct were likely to be contained in 5 the personnel files.

The district court agreed.

The Ninth

6 Circuit did not, and reversed and remanded for an in camera 7 review by the district court. 8 9 10 11

The court held that:

[t]he government is incorrect in its assertion that it is the defendant's burden to make an initial showing of materiality. The obligation to examine the files arises by virtue of the making of a demand for their production. Id. at 31.

12 13

In Kyles, the Supreme Court held that it was the duty of

14 the individual prosecutor to personally inspect agency files and 15 discover any Brady material in the possession of other agencies. 16 514 U.S. at 437.

The court specifically wrote: "the individual

17 prosecutor has a duty to learn of any favorable evidence known 18 to the others acting on the government's behalf in the case, 19 including the police." Id. 20

In Kyles, the state argued that a prosecutor cannot be

21 required to turn over information he or she does not personally 22 possess.

This argument had previously been accepted by the See, United States v. Jennings, 960 F.2d 1488

23 Ninth Circuit.

24 (9th Cir. 1992); United States v. Dominguez-Villa, 954 F.2d 562 25 (9th Cir. 1992).

The Supreme Court rejected that argument and

26 focused on the personal duty of the individual prosecutor: 27
LAW OFFICES
506 BROADW AY SAN FRANCISCO (415) 986-5591 Fax: (415) 421-1331

28

To accommodate the state in this manner would, however, amount to a serious change of course from the Brady line of cases. In the state's favor, it may be said that no 5

Case 3:07-cr-00348-BZ

Document 12

Filed 07/25/2007

Page 9 of 11

1 2 3 4 5 6 7 8 9 10

one doubts that police investigators sometimes fail to inform a prosecutor of all they know. But neither is there any serious doubt that procedures and regulations can be established to carry the prosecutor's burden and to insure communication of all relevant information on each case to every lawyer who deals with it. Since, then, the prosecutor has the means to discharge the government's Brady responsibilities if he will, any argument for excusing a prosecutor from disclosing what he does not happen to know about boils down to a plea to substitute the police for the prosecutor and even for the courts themselves, as the final arbiters of the government's obligation to ensure a fair trial. Kyles, 514 U.S. at 438.

11 Echoing Agurs, the court stated that "this means, naturally, 12 that a prosecutor anxious about tacking too close to the wind 13 will disclose a favorable piece of evidence. 14 should be." Id. 15

This is as it

Because Kyles, Brady and Giglio are based upon a

16 defendant's due process right to a fair trial, it should not 17 matter if the exculpatory information is in the hands of state 18 or federal officials.

"The individual prosecutor has a duty to

19 learn of any favorable evidence known to the others acting on 20 the government's behalf in this case, including the police." 21 Kyles, 514 U.S. at 437. 22

In the instant case, upon defendant's request, the

23 government should be held responsible for the production of any 24 and all federal agents files. 25

The Court could assure the impartiality and thoroughness of

26 the review procedure by use of a magistrate judge, thus, conduct 27 a judicial in camera review.
LAW OFFICES
506 BROADW AY SAN FRANCISCO (415) 986-5591 Fax: (415) 421-1331

The issues to be determined is one It is hard to place

28 that is best observed by a neutral arbiter.

6

Case 3:07-cr-00348-BZ

Document 12

Filed 07/25/2007

Page 10 of 11

1 a finger on such materials if the viewpoint is that of an 2 advocate whose job is not combing documents for impeachment 3 material.

Similarly, there is an institutional bias.

4 Impeachment material affecting credibility can and should 5 include whether the officer has engaged in shading of the truth, 6 "mischaracterizations" of fact short of perjury, or improper 7 police practices. 8

The Justice Department policy stated in footnote 3 of

9 Jennings, supra, may be the worst alternative, from the point of 10 view of assuring the fairness of a review. 11 guarding the chicken coop.

It smacks of the fox

According to the opinion, "the

12 Department of Justice has instituted a policy designed to 13 implement the holding of Henthorn.

Under this policy, the files

14 of law enforcement officers are to be examined by the 15 appropriate agency's attorney or his staff.

The agency legal

16 staff will notify the federal prosecutor assigned to the case if 17 any potential Brady material is found, and the AUSA will then 18 determine whether the information should be disclosed or whether 19 an in camera review by the district court is appropriate." 20 F.2d at 1492, note 3. 21

960

The defense urges most strenuously against this procedure

22 for the obvious reason that an agency's legal staff has every 23 motive to hide material which the defense should properly 24 receive by "characterizing" them as non-exculpatory.

While it

25 is true that under Kyles, the United States Attorney would be 26 charged with the Brady violation if exculpatory material was 27 disclosed later which was earlier withheld and reversal of a
LAW OFFICES
506 BROADW AY SAN FRANCISCO (415) 986-5591 Fax: (415) 421-1331

28 conviction could result, it is hard to conceive of how

7

Case 3:07-cr-00348-BZ

Document 12

Filed 07/25/2007

Page 11 of 11

1 suppression of evidence by an agency's legal counsel would be 2 uncovered. 3 4

CONCLUSION For the reasons stated, defendant, Robert Minemier,

5 respectfully requests that this Court order production and an in 6 camera review of the personnel files of the law enforcement 7 agents and officers listed above.

Upon a determination that any

8 file contains material relevant to impeachment or potentially 9 exculpatory evidence, the materials should be disclosed to 10 defense counsel subject to a protective order that the infor11 mation should be used only for purposes of this case. 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27
LAW OFFICES
506 BROADW AY SAN FRANCISCO (415) 986-5591 Fax: (415) 421-1331

Dated: July 25, 2007 Respectfully submitted,

/s/ ROBERT M. AMPARAN ROBERT M. AMPARAN Attorney for Defendant ROBERT MINEMIER

28

8