1. OVERCOMING OBSTACLES TO DISCOVERY AND INVESTIGATION IN FEDERAL COURT Peter Offenbecher

3. TRUTH JUSTICE THE AMERICAN WAY

4. WHO WE THINK WE ARE

5. WHAT WE ALWAYS DO

6. WHO WE REALLY ARE

7. THE DECK IS STACKED AGAINST US

8. SHARING STUFF

9. FPD BRIEFBANK CALL ME

10. DISCOVERY AND INVESTIGATION: OVERVIEW RULE 16(a)(1)(E)(i) BRADY AND GIGLIO TIPS JENCKS DELAY NEEDLE IN A HAYSTACK PLOY USING RPCS USING DOJ RULES RULE 17(c) SUBPOENA

13. WHAT IS OUR ULTIMATE GOAL? WIN THE TRIAL!

14. ACQUITTAL!

15. LESSER INCLUDED

16. HUNG JURY

17. DISMISSAL / SMOKING DEAL  The merits of your defense  The government is afraid of getting caught in some form of misconduct either:  on their part or  the part of the law enforcement agency  They don’t want to work as hard as you are going to make them work Evidence to persuade the government to dismiss the case or offer a smoking deal that works for the client because:

19. DISCOVERY AND INVESTIGATION:  Make the government commit a serious error  Make the court commit a serious error MAKING A RECORD FOR APPEAL OR HABEAS

20. DISCOVERY AND INVESTIGATION: Finding admissible evidence to present at trial:  To support client’s defense:  That can be used to attack the credibility of the government’s case What are we trying to accomplish?

21. BIGGEST PROBLEM FINDING EVIDENCE IN FEDERAL COURT?

22. THE RULES ARE NOT FAIR

23. NO OPEN FILE DISCOVERY

24. NO WITNESS INTERVIEWS

25. NO RECORDING OF WITNESS INTERVIEWS

26. Federal Rule of Criminal Procedure 16  Specific items  Items material to preparing the defense

27. RULE 16: SPECIFIC ITEMS  Defendant’s criminal history  Defendant’s statements  Documents and objects:  Government intends to use in case in chief  Items obtained from/or belong to defendant  Reports of examinations and tests  Expert witnesses

28. FAVORITE WEAPON IN RULE 16

29. MATERIAL TO PREPARING THE DEFENSE RULE 16 (a)(1)(E)(i) The government must permit defendant to inspect and copy if within government’s possession, custody or control ANY ITEM THAT IS MATERIAL TO PREPARING THE DEFENSE

30. MATERIAL TO PREPARING THE DEFENSE RULE 16 (a)(1)(E)(i)

32. “Rule 16 is intended to provide a criminal defendant ‘the widest possible opportunity to inspect and receive such materials in the possession of the Government as may aid him in presenting his side of the case.’” United States v. Safavian, 233 F.R.D. 12, 15 (D.D.C. 2005) D.C. District Judge Paul Friedman

33. “There is no requirement in Rule 16(a)(1)(E)(i) that the material be exculpatory.” United States v. Safavian, 233 F.R.D. 12, 15 (D.D.C. 2005)

34. “It is not limited to evidence that is favorable or helpful to the defense and does not immunize inculpatory evidence from disclosure.” United States v. Safavian, 233 F.R.D. 12, 15 (D.D.C. 2005)

35. “Inculpatory evidence, after all, is just as likely to assist in ‘the preparation of the defendant’s defense’ as exculpatory evidence....” “[I]t is just as important to the preparation of a defense to know its potential pitfalls as to know its strengths.” United States v. Safavian, 233 F.R.D. 12, 15 (D.D.C. 2005)

37. Rule 16(a)(1)(E)(i) permits discovery of information “relevant to the development of a possible defense.” United States v. Muniz-Jaquez, 718 F.3d 1180, 1183-84 (9th Cir. 2013) Judge Alfred Goodwin

38. “Materiality” under Rule 16(a)(1)(E)(i) is “broader than Brady…because [i]nformation that is not exculpatory or impeaching may still be relevant to developing a possible defense.” United States v. Muniz-Jaquez, 718 F.3d 1180, 1183-84 (9th Cir. 2013)

40. Rule 16(a)(1)(E)(i) “[m]ateriality is a low threshold” and is satisfied so long as the information sought could help the defendant prepare a defense. CHIEF JUDGE ALEX KOZINSKI United States v. Hernandez-Meza, 720 F.3d 760, 768 (9th Cir. 2013)

41. “It…behooves the government to interpret the disclosure requirement [of Rule 16(a)(1)(E)(i)] broadly and turn over whatever evidence it has pertaining to the case.” United States v. Hernandez-Meza, 720 F.3d 760, 768 (9th Cir. 2013)

42. A defendant needn’t spell out his theory of the case in order to obtain discovery. Nor is the government entitled to know in advance specifically what the defense is going to be. United States v. Hernandez-Meza, 720 F.3d 760, 768 (9th Cir. 2013)

43. LACK OF KNOWLEDGE OR DUE DILIGENCE IS NO EXCUSE FOR GOVERNMENT’S FAILURE TO COMPLY United States v. Hernandez-Meza, 720 F.3d 760, 768 (9th Cir. 2013)

44. CHIEF JUDGE KOZINSKI

45. WHY RULE 16(a)(1)(E)(i) IS SO GOOD

46. Defense counsel constitutionally ineffective for failing to conduct an investigation which would have revealed a meritorious Fourth Amendment motion to suppress physical evidence and failing to pursue the motion to suppress. Kimmelman v. Morrison, 477 U.S. 365, 385-86 (1986)

47. INFORMATION REGARDING MOTIONS TO SUPPRESS EVIDENCE IS “MATERIAL TO PREPARATION OF THE DEFENSE” Because defense counsel have a constitutional obligation to investigate and file these motions to suppress, the information and evidence requested regarding the motion is “material to preparation of the defense.” Fed. R. Crim. P. 16(a)(1)(E)(i).

48. OTHER WEAPONS IN THE ARSENAL

49. Brady v. Maryland Giglio v. United States

50. DISAVOW THE STANDARD OF MATERIALITY UNDER BRADY/BAGLEY The evidence is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A ‘reasonable probability’ is a probability sufficient to undermine confidence in the outcome.

51. TRIAL COURT STANDARD OF REVIEW

52. The standard of whether evidence would have changed the outcome “is only appropriate, and thus applicable, in the context of appellate review... [I]t obviously cannot be applied by a trial court facing a pretrial discovery request.” United States v. Sudikoff, 36 F. Supp. 2d 1196 (C.D. Cal. 1999) Judge Harry Pregerson

53. The government must always produce any potentially exculpatory or otherwise favorable evidence without regard to how the withholding of such evidence might be viewed – with the benefit of hindsight – as affecting the outcome of the trial. United States v. Safavian, 233 F.R.D. 12, 16 (D.D.C. 2005)

54. A trial prosecutor’s speculative prediction about the likely materiality of favorable evidence, however, should not limit the disclosure of such evidence, because it is just too difficult to analyze before trial whether particular evidence ultimately will prove to be “material” after trial. Thus, “there is a significant practical difference between the pretrial decision of the prosecutor and the post-trial decision of the judge.” United States v. Olsen, 704 F.3d 1172, 1183 n.3 (9th Cir. 2013)

55. The ‘materiality’ standard usually associated with Brady... should not be applied to pretrial discovery of exculpatory materials. The absence of prejudice to the defendant does not condone the prosecutor’s suppression of exculpatory evidence. United States v. Price, 566 F. 3d 900, 911 n.12 (9th Cir. 2009) Judge Stephen Reinhardt

56. Rather, the proper test for pretrial disclosure of exculpatory evidence should be an evaluation of whether the evidence is favorable to the defense, i.e., whether it is evidence that helps bolster the defense case or impeach the prosecutor’s witnesses.... If doubt exists, it should be resolved in favor of the defendant and full disclosure made. o pretrial discovery of exculpatory materials... United States v. Price, 566 F. 3d 900, 911 n.12 (9th Cir. 2009)

57. UNITED STATES ATTORNEYS MANUAL

58. ADOPTED BY THE DOJ The USAM requires prosecutors to disclose information beyond that which is “material” to guilt as articulated by the U.S. Supreme Court, and prosecutors must disclose exculpatory or impeachment information.... regardless of whether the prosecutor believes such information will make the difference between conviction and acquittal of the defendant for a charged crime. U. S. Attorneys Manual § 9-5.001.

59. FIRST ASK NICELY WHAT YOU WANT

60. MAKE THE PROSECUTOR ADOPT THE TRIAL COURT STANDARD OF REVIEW Send them a letter asking them to agree that this is the standard. Then file a motion asking the judge to set that standard for the prosecutor.

61. Practical Order of Events 1. Letter – specific and general 2. Meeting – Local Rule 16 requires a meet and confer 3. Follow-up letter 4. Motion for order compelling discovery 5. Request a hearing on the motion 6. Oral argument – present evidence – call witnesses

62. United States v. Phair and Louie No. CR 12-16 RAJ Judge Richard A. Jones

63. INFORMATION, NOT JUST STUFF United States v. Kohring, 637 F.3d 895, 900 (9th Cir. 2011)

64. JENCKS DELAYS The prosecutor promised to provide Jencks Act statements “at a reasonable time before trial.” The Court concluded that “this statement is, in essence a waiver by the government of its right to withhold any statements covered by the Jencks Act until after the relevant witness testifies on direct examination.” United States v. Hikiau, Inc., 2:07-CR-00792-DAKPMW, 2008 WL 803053 (D. Utah Mar. 21, 2008)

65. Affirming trial court order directing the disclosure of the government’s final witness list one year prior to trial THE COURT’S INHERENT POWER TO CONTROL ITS CALENDAR United States v. W.R. Grace, 526 F.3d 499, 508-12 (9th Cir. 2008)(en banc)

66. GET AN EVIDENTIARY HEARING ON ANYTHING WHERE YOU CAN CALL THE AGENTS TO TESTIFY Get the Jencks (Rule 26.2 (g)) [preliminary hearing, sentencing hearing, revocation hearing, detention hearing, suppression hearing]

67. GET THE AGENTS TESTIFYING UNDER OATH

68. Because you know what’s going to happen

69. Get the agents and witnesses talking to the AUSAs, so that NEW BRADY AND RULE 16 MATERIAL will be generated

70. USE THE RULES OF PROFESSONAL CONDUCT

71. 28 U.S.C. Section 530B(a) (also known as the “Citizen’s Protection Act of 1998”) (“An attorney for the Government shall be subject to State laws and rules, and local Federal court rules, governing attorneys in each State where such attorney engages in that attorney's duties, to the same extent and in the same manner as other attorneys in that State.”); 28 C.F.R. § 77.3 (“In all criminal investigations and prosecutions... attorneys for the government shall conform their conduct and activities to the state rules and laws, and federal local court rules.”)

72. RPC 3.8(d) The prosecutor in a criminal case shall... (d) make timely disclosure to the defense of all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense. See ABA Formal Op. 09-454, at (July 8, 2009))

73. NEEDLE IN A HAYSTACK DISCOVERY PLOY

74. Judge Marsha J. Pechman United States v. Silva No. CR12-047 MJP

75. CRIMINAL RULE 17(c) AND CIVIL RULE 45

77. Practice pointers Affirmative duty to search possible sources of exculpatory information Government’s witness preparation material Within its possession custody or control Jencks request after the direct examination of witness Request for preservation of notes

78. HENTHORN

79. Review of the personnel files of any government witness to determine whether such files contain any information tending to cast doubt on that witness’s credibility. United States v. Henthorn, 931 F.2d 29, 30-31 (9th Cir. 1991). United States v. Jennings, 960 F.2d 1488, 1491-92 (9th Cir. 1992).