United States District Court, W.D. Washington
ORDER DENYING RESPONDENT'S MOTION TO AMEND
SCHEDULING ORDER AND DENYING WITHOUT PREJUDICE
PETITIONER'S MOTION TO COMPEL
BENJAMIN H. SETTLE UNITED STATES DISTRICT JUDGE
matter comes before the Court on the Government's motion
to continue and/or bifurcate the evidentiary hearing. Dkt.
34. Also before the Court is Petitioner's motion to
compel disclosure of a supplemental briefing that the
Government filed under seal. Dkt. 36. The Court has
considered the pleadings filed in support of and in
opposition to the motions and the remainder of the file and
hereby denies the motions for the reasons stated herein.
September 24, 2014, a jury found Petitioner guilty of
Possession of Methamphetamine with Intent to Distribute under
21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), and 18 U.S.C.
§ 2. Cause No. CR13-5512, Dkt. 120. On December 15,
2014, the Court entered judgment in Petitioner's case.
Id., Dkt. 139. On December 17, 2014, Petitioner gave
notice of appeal. Id., Dkt. 140. On February 11,
2016, the Court of Appeals for the Ninth Circuit affirmed
Petitioner's conviction. Id., Dkts. 216, 218.
26, 2016, Petitioner filed a petition under § 2255,
presently before the court. Dkt. 1. On July 8, 2016, the
Government responded. Dkt. 7. On August 1, 2016, Petitioner
replied to the government's response to his § 2255
petition. Dkt. 10. On August 9, 2016, he moved for
appointment of counsel and for leave to amend his petition.
Dkt. 11. On August 16, 2016, the Government responded to
Petitioner's motion for counsel and leave to amend. Dkt.
September 13, 2016, the Court requested additional briefing
on the issue of whether Petitioner had selectively waived his
Miranda rights prior to being questioned about his
involvement with suspected drug trafficking in Washington.
Dkt. 13. On September 23, 2016, the Government filed
supplemental briefing. Dkt. 14. On October 17, 2016,
Petitioner filed his supplemental brief. Dkt. 17.
November 1, 2016, the Court denied the § 2255 petition
on most of its claims, but reserved ruling in part on the
issue of “selective waiver.” Dkt. 18. The Court
also ordered an evidentiary hearing and granted
Petitioner's motion for leave to amend and to appoint
April 5, 2017, the Government filed a motion to amend the
scheduling order by either bifurcating the proceeding or
continuing it entirely. Dkt. 34. Additionally, the Government
filed under seal an ex-parte supplemental briefing in support
of its motion that describes information that the Government
believes may be subject to disclosure under
Brady/Giglio if the case proceeds as scheduled. Dkt.
35. On April 10, 2017, Petitioner moved to compel production
of the Government's sealed supplemental briefing. Dkt.
36. Petitioner also responded in opposition to the
Government's motion for a bifurcation, and stated that an
assessment of the motion to continue was impossible without
access to the justifications for seeking a continuance set
forth in the Government's sealed pleading. Dkt. 37. On
April 10, the Government responded in opposition to
Petitioner's motion to compel. Dkt. 38.
Motion to Continue or Bifurcate
case, the Government seeks either a bifurcation or
continuance of the evidentiary hearing on the basis that it
possesses three pieces of information that may be of value to
impeach the credibility of witnesses favorable to the
Government, thus requiring Brady/Giglio disclosures,
and that a bifurcation or continuance may obviate the need
for disclosure. Under the Government's argument in favor
of bifurcation, it claims that the disclosure of these
materials could be rendered moot if the testimony of
Petitioner and his trial counsel reveal that counsel's
oversight of the “selective waiver” issue falls
short of the ineffective assistance of counsel standard.
Additionally, in support of its requests for either
bifurcation or a continuance, the Government argues that the
extended period before its witnesses are required to testify
might allow an ongoing investigation to be resolved in a
manner favorable to a potential witness, such that the
resolution of the investigation obviates any need for a
Brady v. Maryland, 373 U.S. 83 (1963), the Supreme
Court held that the suppression of material evidence violates
due process and will necessitate a new trial. 373 U.S. at 87.
“When the reliability of a given witness may well be
determinative of guilt or innocence, nondisclosure of
evidence affecting credibility falls within this general
rule.” Giglio v. United States, 405 U.S. 150,
154 (1972) (internal quotation omitted). See also Ayala
v. Chappell, 829 F.3d 1081, 1106 (9th Cir. 2016)
(“'Evidence favorable to [the] accused'
includes evidence that would help a defendant impeach
prosecution witnesses.”). When the Government is unsure
of the impeachment value of certain information, the Ninth
Circuit has required that it submit the information for
in camera review. See United States v.
Henthorne, 931 F.2d 29, 30-31 (9th Cir. 1991). As for
the timing of such disclosures, “Brady
requires pretrial disclosure of exculpatory
information in time for it to be a value to the
accused.” United States v. Acosta, 357
F.Supp.2d 1228, 1245 (D. Nev. 2005) (emphasis in original).
address the Government's request, the Court addresses the
Government's duties under Brady/Giglio and
whether the requested relief would be of convenience, avoid
prejudice to a party, or expedite and economize in this case.
See Fed. R. Civ. P. 42. In particular, the Court
assesses (1) the Brady/Giglio information that has
already been disclosed to Petitioner's counsel regarding
Agent Brady, and (2) currently undisclosed information that
may implicate the credibility of another potential witness.