United States District Court, E.D. Washington
ORDER ON DEFENDANT'S PRETRIAL MOTIONS
THOMAS O. RICE, District Judge.
BEFORE THE COURT are Defendant's: Motion for Disclosure of Exculpatory Evidence Maintained in the IRS's Administrative System of Records (ECF No. 30); Motion to Compel Discovery, Preserve Discovery and for Leave to File Further Motions (ECF No. 31); Motion to Dismiss Counts 1-10, etc., (ECF No. 34); and Motion for Disclosure of Minutes of the Grand Jury and Tax Returns and Tax Return Information (ECF No. 35). The Court has reviewed the relevant pleadings and supporting materials, and is fully informed.
1. Defendant's Motion for Disclosure of Exculpatory Evidence (ECF No. 30)
Defendant seeks 40 categories of information from the IRS for the years 2002 to present, including: the Individual Master File (IMF) and Business Master File (BMF) pertaining to herself, three others with her same last name (collectively referred to by the Defendant as "the Townsends"), three business entities with Townsend in their name (collectively referred to by the Defendant as "the Townsends' entities"), and every employee and contractor for the Townsend entities; a host of specific documents allegedly maintained by the IRS pertaining to the Townsends and the Townsends' entities; documents which would assist in decoding these documents; and all documents relating to every electrical contractor and journeyman doing business in the State of Washington.
The United States resists Defendant's discovery request explaining the limited nature of the charges against the Defendant and summarizing the information it has already provided:
Here, the Government has produced in discovery Certificates of Assessments, Payments, and Other Specified Matters (Forms 4340) reflecting information in the IMF and BMF and tax returns filed by the Defendant. The Government also has produced in discovery copies of the actual Forms 941, Forms 1120S, and Forms 1040 that the Defendant filed. The Government also has produced in discovery the Information Returns Master File Payer Request (IRPTRR) for Forms W-2 issued to employees by TCI. The Government also has produced in discovery TCI business records showing that the Defendant withheld Federal income tax withholdings and FICA for TCI employees. The company's own books and records (that were provided to the IRS Special Agent investigating the case) show that the company's employees were W-2 wage earners and not independent contractors. These books and records have been produced in discovery.
ECF No. 46 at 2-3. The United States contends Defendant's requests are "blanket demands" for which not the "slightest heed" should be given. ECF No. 46 at 5, 9 ( citing United States v. Augurs, 427 U.S. 97, 106 (1976). The United States also contends Defendant has failed to establish the requisite materiality of the records such that Rule 16 would require their disclosure.
"There is no general constitutional right to discovery in a criminal case." Weatherford v. Bursey, 429 U.S. 545, 559 (1977). Over time a patchwork of statutory and judge-made rules has evolved to govern criminal discovery. Those rules include: (1) the Jencks Act; (2) the Federal Rules of Criminal Procedure; and (3) Brady v. Maryland, 373 U.S. 83 (1963), and its progeny.
Rule 16 of the Federal Rules of Criminal Procedure governs criminal discovery. It has been significantly expanded since the Rules were first adopted, and it now imposes discovery obligations both on the government and the defense. See Fed. R. Crim. P. 16. Unlike civil discovery, where some materials are automatically produced as a matter of right, in criminal discovery, the defendant must invoke the right to discovery. Compare Fed. R. Crim. P. 16(a)(1) with Fed.R.Civ.P. 26(a). Once a defendant makes a Rule 16 discovery request and the government complies, the government is entitled to seek reciprocal discovery from the defendant. See Fed. R. Crim. P. 16(b)(1). The Ninth Circuit recently outlined the district court's role in the discovery process in light of the obligations imposed by Rule 16:
Congress has thus addressed the kinds of information the government and defendants are obligated to provide to each other before trial by way of discovery and the district court's authority to enforce those obligations. Rule 2 bolsters that authority by instructing that the rules "are to be interpreted to provide for the just determination of every criminal proceeding, to secure simplicity in procedure and fairness in administration, and to eliminate unjustifiable expense and delay." The thrust of Rule 16-viewed in light of Rule 2-is to allow the district court to ensure that the parties comply with the letter and spirit of the rule.
United States v. W.R. Grace, 526 F.3d 499, 510 (9th Cir. 2008). Rule 16 also requires disclosure of documents "material to preparing the defense." Rule 16(a)(1)(E)(i); United States v. Muniz-Jaquez, 718 F.3d 1180, 1183-1184 (9th Cir. 2013). "A defendant must make a threshold showing of materiality, which requires a presentation of facts which would tend to show that the Government is in possession of information helpful to the defense." Id. (citation omitted). "General descriptions of the information sought or conclusory allegations of materiality" are insufficient. Id. (citation and brackets omitted).
Brady v. Maryland held "that 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 to punishment, irrespective of the good faith or bad faith of the prosecution." 373 U.S. at 87. In United States v. Bagley, 473 U.S. 667 (1985), the Supreme Court disavowed any difference between exculpatory and impeachment evidence for Brady purposes. Despite the Government's argument to the contrary, Bagley also held that regardless of request, favorable evidence is material, and constitutional error results from its suppression by the government, "if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different." 473 U.S. at 682 (it abandoned the distinction between the "specific-request" and "general - or no-request" situations).
The Ninth Circuit summarized the obligation of the prosecutor concerning Brady material under Kyles v. Whitley, 514 U.S. 419 (1995):
Moreover, as we have previously held:
actual awareness (or lack thereof) of exculpatory evidence in the government's hands, ... is not determinative of the prosecution's disclosure obligations. Rather, the prosecution has a duty to learn of any exculpatory evidence known to others acting on the government's behalf. Because the prosecution is in a unique position to obtain information known to other agents of the government, it may not be excused from disclosing what it does not know but could have learned.
United States v. Price, 566 F.3d 900, 909 (9th Cir. 2009) ( citing Carriger v. Stewart, 132 F.3d 463, 479-80 (9th Cir. 1997) ( en banc )). The Government correctly notes that Brady is not a discovery rule, but then incorrectly claims the materiality test of Rule 16 and Brady are interchangeable. ECF No. 46 at 5-9. They are not. Rule 16(a)(1)(E)(i) only requires demonstration that the "item is material to preparing the defense" not that it's materiality rise to the level of a reversible Constitutional violation for the failure to disclose it.
The Government has acknowledged its broad Brady obligations and has professed to have complied with them. Concerning the 40 itemized categories of information Defendant seeks, there has been insufficient showing that they are "material to preparing the defense." Thus, Defendant's requests are denied. However, IRS Document 6209 is purportedly an index containing definitions for the codes found on some of the records the Government has supplied to the Defendant. For this, the Defendant has shown that it is material to preparing a defense to know what those codes mean on the documents the Government has supplied. Accordingly, the Government shall provide Document 6209 or its equivalent defining the codes used on the discovery provided.
2. Motion to Compel Discovery, Preserve Discovery and for Leave to File Further Motions (ECF No. 31)
Defendant seeks 23 categories of discovery, a preservation order and leave to file additional motions.
The Government responds that it believes that many of the Defendant's discovery requests have been addressed through its production of discovery. It asks the Court to delay ruling until the pretrial conference. ECF No. 54. The Court declines the Government's invitation.
1. Ms. Townsend's Statements
The Government shall promptly disclose all written, recorded and oral statements made by Defendant. F. R. Crim. P. 16(a)(1)(A) and (B).
2. Investigative Reports, Notes, and Tape Recordings
Except as required by F. R. Crim. P. 16(a)(1)(A) and (B), all other reports, memoranda or other internal documents made by a government agent in connection with the investigation and prosecution of the case need not be disclosed. F. R. Crim. P. 16(a)(2).
3. Brady Material
As indicated above, the Government claims to have complied with Brady and acknowledges its continuing obligation. This request is denied as moot.
4. Ms. Townsend's Prior Record
The Government shall provide Defendant with her ...