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36 FEDERAL SUPPLEMENT, 2D SERIES UNITED STATES Of 1196 36 FEDERAL SUPPLEMENT, 2d SERIES 3. Criminal Law O700(2.1) UNITED STATES of America, Plaintiff, When district court is conducting pre- v. trial review of question whether exculpatory Jeffrey SUDIKOFF & Edward material in possession of prosecutor is re- Cheramy, Defendants. quired to be disclosed to defendant, govern- No. CR 97–1176 DDP. ment is required to disclose all evidence re- lating to guilt or punishment which might United States District Court, reasonably be considered favorable to defen- C.D. California. dant’s case, which is admissible or likely to March 2, 1999. lead to admissible favorable evidence. 4. Criminal Law O700(3) Defendants were charged with criminal Exculpatory information in possession of securities fraud. They moved for discovery of prosecutor, required to be turned over to information regarding negotiations leading to defendant under Brady, did not include inad- agreement of accomplice to testify in return missible evidence that would not lead to ad- for leniency. The District Court, Pregerson, J., held that: (1) exculpatory information in missible evidence, even though evidence in possession of prosecutor, required to be question would assist defendant in prepara- turned over to defendant under Brady, did tion of defense. not include inadmissible evidence that would 5. Criminal Law O700(4) not lead to admissible evidence; (2) any varia- tions in accomplice witness’ proposed testi- Any variations in an accomplice witness’ mony, from earlier statements made to au- proposed testimony, from earlier statements thorities, was required to be disclosed; (3) made to authorities, could be considered fa- information that revealed process by which vorable to the defense and the existence of accomplice witness and government reached such differences should be disclosed under leniency agreement was required to be dis- Brady. closed; (4) defendants’ communications of 6. Criminal Law O700(4) proposed testimony made with intent that lawyer relay communications to government Information that revealed process by were not protected by lawyer-client privilege; which accomplice witness and government and (5) information provided to court was reached leniency agreement was required to insufficient to permit determination whether be disclosed under Brady and Giglio, as it discovery was required under Jencks Act. revealed witness’ motive to testify against Discovery ordered. defendant and was relevant to witness’ credi- bility. 1. Criminal Law O700(4) 7. Criminal Law O700(4) Evidence that would show bias, motive Information regarding negotiations be- to lie or exaggerate, or dishonesty on part of tween government and accomplice, leading prospective witness is within scope of materi- up to agreement of accomplice to testify in al that prosecution is required to reveal to return for leniency, was required to be dis- defendant upon request, under Brady. closed under Brady and Giglio without re- 2. Criminal Law O700(3) gard to whether it was admissible, as it could Brady requirement, that nondisclosure lead to discovery of admissible evidence. of exculpatory material must be material, in sense that disclosure might have affected 8. Witnesses O67 outcome of trial, was inapplicable to pretrial A client’s communications of proposed request that prosecutor supply defendant testimony made with the intent that the law- with all documentation relating to prospec- yer relay the communications to the govern- tive testimony in criminal securities fraud ment are not protected by the lawyer-client case. privilege. Supreme Court Standard 503. U.S. v. SUDIKOFF 1197 Cite as 36 F.Supp.2d 1196 (C.D.Cal. 1999) 9. Witnesses O67 I. Background Attorney’s proffer of proposed testimony In a multi-count indictment the govern- of accomplice witness did not violate attor- ment charged defendants Jeffery Sudikoff ney-client privilege; client communicated pro- and Michael Cheramy with various securities posed testimony to attorney with under- and related violations. One of Sudikoff’s as- standing that it would be transmitted to third sociates, Phil McInnes, received immunity persons. from the government and will testify for the prosecution at trial.1 Brad D. Brian, Munger Tolles & Olson, As part of the discovery process, the gov- Los Angeles, CA, for defendant Jeffrey Sudi- ernment has disclosed information that re- koff. lates to McInnes’s testimony. The informa- Stephen Romero, Pasadena, CA, Dale L. tion dates back to April 1995, which was Smith, Office of the Federal Public Defender, shortly after McInnes and the government Los Angeles, CA, for defendant Vicente reached an agreement as to immunity. Sudi- Loya. koff requests that the Court order the gov- ernment to disclose material dating back to Gordon A. Greenberg, Sheppard Mullin the Fall of 1994, when McInnes first began Richter & Hampton, Los Angeles, CA, for communicating with the government regard- Edward Cheramy. ing possible testimony. Specifically, Sudikoff requests ‘‘all notes or other evidence of any AMENDED ORDER GRANTING communication between the government and MOTION FOR DISCOVERY Phil McInnes or his counsel—including mate- PREGERSON, District Judge. rials relating to ‘proffer sessions’ that oc- In many criminal trials, the government curred well before the date of the first relies on the testimony of people who were FBI ’302’ for Mr. McInnes.’’ (Mot. at 1.) involved with the defendant in the commis- sion of the crime charged. Such ‘‘accomplice II. Discussion witnesses’’ are often the best, if not the only, Sudikoff asserts three grounds for discov- source of information about the alleged erability: the doctrine of Brady v. Mary- crime. To ensure that accomplice witnesses land, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d testify truthfully and completely, the govern- 215 (1963); the doctrine of Giglio v. United ment often reaches agreements with such States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d witnesses that offer leniency or immunity in 104 (1972); and the requirements of the exchange for truthful testimony. Jencks Act, 18 U.S.C. § 3500. Because Gig- In this matter, the Court is called on to lio is a subcategory of Brady, see Giglio, 405 determine the boundaries of the govern- U.S. at 153–54, 92 S.Ct. 763, the Court will ment’s discovery obligations relating to the consider these doctrines together and then agreements between the government and ac- consider the application of the Jencks Act. complice witnesses. The defendants have moved the Court to compel disclosure of A. Brady and Giglio documents and information relating to the [1] In Brady, the Supreme Court held period between an accomplice witness’s ini- that ‘‘the suppression by the prosecution of tial contact with the government regarding evidence favorable to an accused upon re- possible cooperation and the point at which quest violates due process where the evi- the witness and the government reached an dence is material either to guilt or to punish- agreement concerning the accomplice wit- ment TTTT’’ 373 U.S. at 87, 83 S.Ct. 1194. ness’s testimony. Evidence that weakens the credibility of a 1. This motion was originally brought by Sudikoff Court’s order will focus on McInnes and will and concerned only witness McInnes. At oral address the motion as if made only by Sudikoff, argument, Cheramy joined Sudikoff’s motion and the Court will apply its conclusion to all such extended it to all witnesses who may testify pur- witnesses and to both defendants rather than suant to an agreement of leniency. Though the require the defendants to bring multiple motions. 1198 36 FEDERAL SUPPLEMENT, 2d SERIES prosecution witness has long been considered been clearly stated. Therefore, before dis- Brady material. See, e.g., Thomas v. United cussing the appropriate standard, the Court States, 343 F.2d 49 (9th Cir.1965). Thus, will address why the ‘‘materiality’’ standard, evidence that would show bias, motive to lie the usual standard associated with Brady, or exaggerate, or dishonesty of the witness is should not be applied in this context. The within the scope of Brady. Court will then discuss the appropriate stan- In Giglio, the Supreme Court found a Bra- dard. dy-type due process violation by the govern- ment’s suppression of evidence of a leniency a. The materiality standard agreement with an accomplice witness. 405 U.S. at 151, 92 S.Ct. 763. Specifically, the [2] Numerous cases define the Brady ob- Supreme Court stated that the accomplice ligation in the context of appellate review witness’s ‘‘credibility as a witness was TTT an considering the ramifications of a prosecu- important issue in the case, and evidence of tor’s failure to disclose evidence. Using this any understanding or agreement as to a fu- post-trial perspective, Brady held that it ture prosecution would be relevant to his would be a due process violation only if the credibility and the jury was entitled to know suppressed evidence was ‘‘material.’’ Courts of it.’’ Id., 405 U.S. at 154–55, 92 S.Ct. 763. have concluded that ‘‘[e]vidence is considered Thus, the suppression of such evidence vio- material ‘only if there is a reasonable proba- lated due process. bility that, had the evidence been disclosed to In the present case, Sudikoff asserts that the defense, the result of the proceeding McInnes proffered various versions of his would have been different.’ ’’ Ortiz v.. Stew- testimony during the period leading up to his art, 149 F.3d 923, 935 (9th Cir.1998) (quoting immunity agreement. Sudikoff argues that United States v. Bagley, 473 U.S. 667, 682, the proffers and any notes from proffer ses- 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985)). sions are Brady and Giglio because they ‘‘will bear directly on Mr. McInnes’ credibili- Because a finding of a Brady violation ty, as well as the motives for Mr. McInnes’ requires the appellate court to conclude that story incriminating Mr.
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