United States District Court, W.D. Washington, Seattle
C. Coughenour UNITED STATES DISTRICT JUDGE
matter comes before the Court on Defendant Errol Mayers's
motion to continue his sentencing, motion to seal, and motion
for new trial (Dkt. Nos. 99, 100, 101). Having thoroughly
considered the parties' briefing and the relevant record,
the Court finds oral argument unnecessary and hereby DENIES
the motion to continue and the motion for new trial and
GRANTS in part and DENIES in part the motion to seal for the
reasons explained herein.
MOTION TO CONTINUE (DKT. NO. 99)
background facts of this case and Defendant's conviction
for felon in possession of a firearm have been detailed in
previous orders. (See Dkt. No. 95 at 1-2.) Of
additional relevance is the fact that the Court previously
granted a motion to continue the sentencing. (Dkt. No. 96.)
now asks that the Court again continue the rescheduled
sentencing because the applicable sentencing guideline range
determined by the United States Probation Office in its final
presentence investigation report is “substantially
different” from the preliminary presentence
investigation report. (Dkt. No. 99 at 1-2.) This argument has
no merit. The parties submitted their comments to the
preliminary presentence investigation report, as reflected in
the addendum of the document. (Dkt. No. 97 at 20-22.)
Moreover, the rescheduled sentencing hearing is set for two
weeks after the final presentence investigation report was
filed, (see Dkt. No. 98), and defense counsel knew
in March 2017 the sentencing would take place on May 23,
2017, (see Dkt. No. 94). There is no reason to
believe defense counsel has an inadequate amount time to
prepare his sentencing memorandum. Therefore, the motion to
continue is DENIED.
MOTION FOR NEW TRIAL (DKT. NO. 101)
additional relevant facts for this motion are as follows.
Following Defendant's trial, defense counsel obtained
records from the Tukwila Police Department regarding police
and computer-aided dispatch (CAD) reports of incidents that
occurred at Riverside Casino and Great American Casino from
April 30, 2016 to May 8, 2016. (Dkt. No. 101 at 3.) The
reports indicate that ten 911 calls were made during that
period regarding a crime being committed at either casino.
(See Dkt. No. 101-1.) However, none of the reports
indicate that the crimes involved a gun. The Government
contends the reports were not in its possession before trial
and Defendant never made a discovery request for them. (Dkt.
No. 104 at 3.)
moves for a new trial based on an alleged
Brady violation and the police and CAD reports
evidence that was discovered after trial. (Dkt. No. 101.) To
establish a Brady violation that warrants a new
trial, Defendant must show (1) that the information he has
identified is either exculpatory or admissible for
impeachment purposes; (2) that the information was not
disclosed by the Government; and (3) that Defendant was
prejudiced because the information was not disclosed.
United States v. Wilkes, 662 F.3d 524, 535 (9th Cir.
2011). Brady only applies to evidence that is
favorable to Defendant and material to the case.
Brady, 373 U.S. at 87. Further, newly discovered
evidence does not include information that defense counsel
could have discovered prior to trial through the exercise of
due diligence. See United States v. Harrington, 410
F.3d 598, 601 (9th Cir. 2005) (one of five tests that must be
motion fails for two manifest reasons. First, there was no
Brady violation because the evidence is not
favorable to Defendant. The reports are for unrelated
misdemeanor crimes, none of which involved a firearm.
(See Dkt. No. 101-1.) As the Government points out,
Brady does not impose “an obligation to
communicate preliminary, challenged, or speculative
information.” United States v. Agurs, 427 U.S.
97, 109 n.16 (1976) (quoting Giles v. Maryland, 386
U.S. 66, 98 (1967) (Fortas, J., concurring)). The connection
between this case and the other 911 calls is speculative at
best. Second, the evidence presented is not newly discovered
evidence as indicated by defense counsel's knowledge of
the reports' general existence during his opening
statement at trial. (See Dkt. No. 101-2 at 68.)
There is no reason to believe that this information could not
have been discovered prior to trial. Therefore, the motion
for new trial is DENIED.
MOTION TO SEAL (DKT. NO. 100)
also moves to seal the motion for new trial because one of
the police reports contains identifying information about
another party who was arrested at the Great American Casino.
(Dkt. No. 100 at 2.) The Government did not file an
opposition to this motion.
Court starts from the position that “[t]here is a
strong presumption of public access to [its] files.”
W.D. Wash. Local Civ. R. 5(g)(3); see W.D. Wash.
Local Crim. R. 55(c). However, documents filed in support of
a dispositive motion should remain under seal when a party
can “articulate compelling reasons supported by
specific factual findings” that outweigh the
public's interest in access. Kamakana v. City &
Cty. of Honolulu, 447 F.3d 1172, 1178 (9th Cir. 2006).
Here, sealing the identifying personal information of an
unrelated party to this case is a compelling reason to keep
that information sealed. The motion to seal is GRANTED as to
the identifying personal information. However, the motion is
DENIED as to the rest of the information filed under seal.
Defendant is ORDERED to refile the motion, with the personal
information at issue in the attachments REDACTED.
foregoing reasons, Defendant's motion to continue
sentencing (Dkt. No. 99) is DENIED, Defendant's motion
for a new trial (Dkt. No. 101) is DENIED, and Defendant's
motion to seal (Dkt. No. 100) is GRANTED in part and DENIED
in part. Defendant is ORDERED to ...