Opinion
Case No.: 15cr3175 JM
04-07-2017
UNITED STATES OF AMERICA, Plaintiff, v. DAVID ENRIQUE MEZA, Defendant.
ORDER DENYING DEFENDANT MEZA'S MOTION TO COMPEL DISCOVERY
Before the court is Defendant David Enrique Meza's motion to compel discovery of testing and reports done by the Mexican authorities. (Doc. No. 120.) For the following reasons, the court denies the motion.
BACKGROUND
Meza filed the motion to compel on February 23, 2017. The court heard argument on the motion on March 24, 2017. At that time, the Government stated that it had already made an informal request to Mexican authorities to turn over the information, if it exists, but had not heard back. At Meza's behest, the Government represented that it would make another request in short order. Pending those cooperative efforts, the court deferred ruling on the motion until a scheduled April 7, 2017, hearing.
At an April 6, 2017, scheduling meeting, however, the Government advised the court that it had requested of the Mexican authorities, through informal channels, the lab work associated with the Mexican authorities' DNA findings that did not inculpate Meza. In response, the Mexican authorities forwarded to both parties additional lab work included in Meza's request. At the April 7 hearing, the parties provided further argument on the motion, and the court took it under submission to the extent it had not been mooted by the Government's latest efforts to obtain the information.
LEGAL STANDARDS
Federal Rule of Criminal Procedure 16(a)(1)(F) provides:
Upon a defendant's request, the government must permit the defendant to inspect and to copy or photograph the results or reports of any physical or mental examination and of any scientific test or experiment if: (i) the item is within the government's possession, custody, or control; (ii) the attorney for the government knows—or through due diligence could know—that the item exists; and (iii) the item is material to preparing the defense or the government intends to use the item in its case-in-chief at trial.
Brady v. Maryland, 373 U.S. 83 (1963), holds that, under the Due Process Clause of the Fourteenth Amendment to the United States Constitution, the prosecution must turn over evidence favorable to a criminal defendant when the evidence is material to guilt or punishment.
DISCUSSION
Meza argues that both Rule 16 and Brady require the Government to turn over "a complete copy of the Mexican crime lab file as well as a complete copy of the file of any private laboratory utilized by Mexican authorities, including any biological evidence collected, evaluated, and/or tested by Mexican authorities or private laboratories."
In his motion, Meza also requested an evidentiary hearing "regarding the nature and extent of the working relationship between U.S. and Mexican authorities in investigating and prosecuting this case." At the April 6 scheduling meeting, however, counsel for Meza represented that an evidentiary hearing was no longer necessary, and the court could instead decide the motion on the basis of the relevant law and the parties' arguments in their papers and at the hearings.
A. Rule 16
Meza contends that each prong of Rule 16(a)(1)(F) is satisfied: the information is within the Government's possession, custody, or control; the Government knows—or through due diligence could know—that the information exists; and the information is material to preparing his defense.
The Government focuses its response on its lack of possession, custody, or control, and puts forth a few main points.
First, the Government asserts that the United States and Mexico are not conducting a joint investigation—rather, they are cooperating while conducting parallel investigations, and informal cooperation does not equate to one government serving as the agent of the other.
Next, the Government argues that Meza relies on cases "applying the discovery rules to evidence created by State law enforcement authorities of the United States," but "[e]vidence in the possession of a foreign government is a much different matter." As the Government points out, Meza "cites no case in which a court compelled the U.S. government to produce evidence held in another country."
Continuing on that theme, the Government also contends that neither it, nor Meza, can use the Mutual Lateral Assistance Treaty ("MLAT") between the United States and Mexico to obtain information on Meza's behalf. For one thing, private parties have no right to assert the MLAT (a proposition with which Meza's counsel agreed at the March 24, 2017, hearing). See Medellin v. Texas, 522 U.S. 491, 506 n.3 (2008) ("International agreements, even those directly benefitting private persons, generally do not create private rights or provide for a private cause of action in domestic courts."). For another, certain procedures must be followed in invoking the MLAT that, because of conflicts of interest, cannot be followed when it is a criminal defendant initiating the request.
The Government points out that there are other means, for example a letter rogatory, by which Meza could have attempted to obtain this information.
Finally, the Government argues that even this court "does not possess the authority to order the United States to submit a request to a foreign government, on behalf of the defendant, pursuant to an MLAT."
The court agrees with the Government that, whatever level of cooperation exists between the United States and Mexico, the Government does not have possession, custody, or control of this information and, furthermore, the court cannot force the Government to obtain it from Mexico on his behalf.
As an initial matter, the court finds that Meza reads United States v. Fort, 472 F.3d 1106 (9th Cir. 2007), too broadly. Meza focuses a significant portion of his motion on Fort, and claims that it stands for the proposition that "when non-federal personnel contribute work to a later-initiated federal criminal case involving the same defendant and the same conduct, the investigation is a joint one, and the work is in the constructive possession of the federal government." But Fort only concerned whether investigative reports prepared by local police were in the possession, custody, and control of federal prosecutors. It did not address whether and how foreign-held information is in the possession, custody, and control of the federal government.
A different Ninth Circuit case, decided six years after Fort, is more on point. In United States v. Sedaghaty, 728 F.3d 885 (9th Cir. 2013), the defendant claimed that the government "failed to assist him in obtaining exculpatory evidence, specifically bank records from Saudi Arabia and depositions from Egypt." Id. at 916. After determining that the terms of the MLAT precluded the defendant's reliance on it as a source of discovery, the Ninth Circuit also stated that "the district court had no authority to order the Executive Branch to invoke the [MLAT] treaty process to obtain evidence abroad for a private citizen." Id. at 917. The court held, in sum, that the defendant "misunderstands the role of the court vis-a-vis the discovery he seeks." Id. at 916.
While Sedaghaty did not specifically address the government's possession, custody, or control of the foreign material, the rationale for its holding buttresses previous Ninth Circuit cases that do address the issue, albeit in cursory fashion. In United States v. Flores, 540 F.2d 432, 437 (9th Cir. 1976), for example, the defendant sought an order to compel the government to disclose the names and numbers of prior cases in which an informant-witness had testified. Because the witness had testified almost exclusively in Mexico, the court held that the requested information was "not within the custody or control of the government" and therefore not discoverable under Rule 16. Id. Similarly, in United States v. Friedman, 593 F.2d 109, 120 (9th Cir. 1979), the defendant sought a diary written by a cooperating witness. The court affirmed the district court's denial of the request "because the Government did not have possession or control of it; the Chilean government seized the diary in 1974 and has retained possession of it." Id.
At the March 24 hearing, Meza argued that Flores and Friedman did not involve the level of cooperation that may be at play here. That is likely true. But the cases, when read alongside Sedaghaty, reveal two key points: first, when information is held by foreign entities or on foreign soil, the federal government has less control over it than when it is held by local authorities; second, and more importantly in the context of this motion, the government—and even the court—has less power to obtain it on a defendant's behalf. See United States v. Reyeros, 537 F.3d 270, 283 (3d Cir. 2008) ("The situation in the present case is markedly different. First, and most obviously, it involves a foreign sovereign, which implicates issues that may well make a showing of effective federal control of foreign evidence more sensitive and demanding . . . .").
B. Brady v. Maryland
Meza contends that when materials are possessed by another sovereign, the Government's Brady obligations "must be determined by reference to: "(1) whether the party with knowledge of the information is acting on the government's behalf or is under its control; (2) the extent to which [the foreign sovereign] and federal governments are part of a team, are participating in a joint investigation or are sharing resources; and (3) whether the entity charged with constructive possession has ready access to the evidence." (Doc. No. 120 at 12 (citing Reyeros, 537 F.3d at 282).)
That may not be the test, however. While Meza cites Reyeros, quoting United States v. Risha, 445 F.3d 298, 304 (3d Cir. 2006), as the source of that test, Reyeros immediately acknowledged that the test was developed in the context of a federal-state partnership and doubted whether it was "applicable in the context of cooperation between the United States and a foreign sovereign." Even if it was the test, the Third Circuit was clear that "simply showing an 'intermingling' of assets would clearly not be sufficient to show the [requisite] control . . . ." Id. at 289 n.16.
Yet that is all that Meza offers. (See Doc. No. 120 at 12 ("Here, law enforcement authorities in the United States and Mexico intermingled efforts because the Mexican authorities knew that the information gathered in their investigative efforts would benefit U.S. authorities.").) While there may indeed be intermingling, the fact that Mexico is conducting its own investigation indicates that it is not acting on the Government's behalf or under the Government's control. Thus, this case is not like Risha, 445 F.3d at 305, where the Third Circuit speculated that a state agent—not a foreign agent—may have been under the federal government's control or acting on its behalf when the agent assisted the federal government and even sat at counsel table during the defendant's federal trial.
In short, the first prong of the test, if it applies, is not met here. Neither is the third prong. For the reasons laid out in Flores, Friedman, and Sedaghaty, it cannot be said that the United States "has ready access to the evidence." Accordingly, Brady does not require the Government to obtain and produce this information.
More generally, because the United States authorities tested the same materials and provided the results of that testing to Meza, it is also far from certain that this information is material to Meza's defense at all. See Kyles v. Whitley, 514 U.S. 419, 434-35 (1995) (holding that evidence is material if there is a reasonable probability that pretrial disclosure would have produced a different result at trial, or in other words, whether suppression of the evidence "undermine[d] confidence in the outcome of the trial"). --------
CONCLUSION
On a number of occasions, the Government has represented to the court that "[a]ll of the evidence received from Mexico—either as a result of informal, police-to-police information sharing, or as a result of the formal request to the Government of Mexico under the treaty—has been disclosed to" Meza. Meza now asks the court to supplement that evidence by ordering the Government to produce—or by ordering the Government to order Mexico to produce—information generated by a foreign sovereign and held in a foreign country. Meza has not demonstrated that Rule 16 or Brady require that, however. What's more, the relevant authorities actually suggest that the court lacks the power to issue such an order.
Accordingly, the court denies Meza's motion to compel discovery.
IT IS SO ORDERED. DATED: April 7, 2017
/s/_________
JEFFREY T. MILLER
United States District Judge