GREGORY G. HOLLOWS, Magistrate Judge.
Introduction and Summary
The backdrop of this criminal action is a protracted, bitter divorce proceeding between defendant Steven Zinnel ("defendant Zinnel" or "Zinnel") and his former wife, Michelle Zinnel. The contentiousness of the divorce allegedly led defendant Zinnel to tell his wife that he was going into bankruptcy and that Ms. Zinnel would ultimately receive no marital property. Zinnel ultimately did file for bankruptcy, but also, according to the indictment, created companies and implemented other mechanisms to hide assets from the bankruptcy court. All of these bankruptcy activities may have escaped the government's notice but for Zinnel's efforts in having the government investigate Ms. Zinnel's purported unlawful acquisition and use of Zinnel's private health insurance information, this also, a tit-for-tat stemming from the divorce proceedings. But Zinnel, having roused the beast, like the professor in Frankenstein, was soon fighting off his own creation.
After contact with Ms. Zinnel, the government became much more interested in the alleged bankruptcy fraud which Ms. Zinnel related to them. Investigation ensued, including undercover recordation of meetings with Zinnel and his lawyer/love interest and now co-defendant, Derian Eidson, with both making seemingly damaging admissions. On June 8, 2011, an indictment was returned alleging bankruptcy fraud, money laundering, and transactions in criminally derived property. Defendants have moved for discovery and
Defendant Eidson has moved to compel further discovery/
There are several issues which weave their way through this discovery motion. The court will resolve those issues here and then apply the rulings to the various discovery/
Who is the Government For Discovery/Brady Purposes
The United State asserts that four entities are the "government" for purposes of disclosing information required by either Fed. R. Crim. P. 16 or the dictates of Brady/Giglio: The U.S. Attorneys Office, the F.B.I., the Criminal Division of the Internal Revenue Service and the U.S. Trustee. Defendants seek to have added the bankruptcy trustee for the Zinnel bankruptcy, the entire IRS, as well as cooperating witnesses and victims.
Defendant Zinnel filed a Chapter 7 bankruptcy petition in 2005. In such a case, a trustee is appointed, first on an interim basis by the United States Trustee, and then by creditor election or by default (the interim trustee will continue as trustee). 11 U.S.C. § § 701, 702. In certain situations, the United States Trustee can be the trustee. Id. The trustee looks out for the interests of creditors, and can even oppose a debtor's request for discharge. 11 U.S.C. § 704(a)(6). A trustee performs such duties as: collect and reduce to money property of the estate, investigate the financial affairs of the debtor, make a final report to the court and the United States Trustee regarding administration of the estate, and many others. 11 U.S.C. § 704.
In this case a trustee was appointed for the Zinnel case. The Zinnel bankruptcy trustee, according to the government response (Opposition at page 20), has not been contacted for "substantive" purposes by the prosecution AUSAs, but more to the point, the trustee is obligated to cooperate on request of the U.S. Trustee, and the Trustee has had some apparent contact with the bankruptcy trustee. Defendants seek to include this trustee as part of the "government" for purposes of criminal discovery and
The issue with respect to the bankruptcy trustee in this case is governed by the principle of
If the Zinnel trustee were legally independent of the United States Trustee/United States Attorney, the result would have been different. That is why the result here is different when analyzing the duties of affirmative acquisition of information in discussing cooperating witnesses, victims, or other players in the criminal process. For these individuals, the government does not have a legal right to require these persons to produce anything except through a process of subpoena or search warrant. While cooperating witnesses may well benefit if they accede to informal government requests for information, and may suffer practical detriment if they do not, the initial decision to cooperate depends on the person along with advice that the person may receive from an attorney, if any. Use of process or persuasion to obtain information for a criminal case does not give the prosecutor the "access" required for criminal discovery for
Moreover, counting cooperating witnesses or victims amongst those constituting the "government" would lead to absurd results. Defendants would have this court compel the government to use whatever process necessary to interrogate, on behalf of the defense, all persons who gave the government any information, and then to search or seize the files of all persons with whom the government acquired any information during an investigation, on the off chance that something material or exculpatory or impeaching might be found with the witnesses/victims. The government would be turned into the reluctant defense investigator, and with much more investigative power to boot. Nothing in Rule 16, or in the
The defense contends that it is entitled to see the tax returns of witnesses in this case, and that since the IRS is the "government," it has access to all these tax returns. The undersigned disagrees. Only the criminal investigation side of the IRS involved in this investigation is the government here; the vast administrative arm of the IRS., i.e., ordinary tax collection, is not. Indeed, when the prosecution desires to obtain tax files for a criminal investigation, it simply does not "access" the files, but must petition the court demonstrating precise criteria before any access is permitted. 26 U.S.C. § 6103(i). The requirement to obtain an order before access of tax records is authorized stands as the antithesis of constructive possession.
Accordingly, the Zinnel trustee is the "government" for purposes of the discovery/
Proper Parameters of Brady/Giglio Disclosure
The government asserts that it has complied, or will timely comply, with its
As explained by
Of course, a reasonable determination has to be made at this time that a document or other information is exculpatory or impeaching. But prosecutors have to make that judgment call on the face of the information subject to possible disclosure, and the teaching of
Timing of Rule 16 and Brady/Giglio Disclosures
There is no dispute that Rule 16 discovery is due when requested, or shortly thereafter, with the exception of statements whose disclosure is governed by the Jencks Act or other rules regarding disclosure of grand jury transcripts, and Rule 16(a)(2) and (3). Therefore, the real timing dispute involves
Witness statements, impeaching or not, are also similarly timed pursuant to the Jencks Act, 18 U.S.C. § 3500. The Ninth Circuit has explicitly held that even
Defendants argue that the undersigned has the discretion to fashion timing requirements pursuant to its inherent authority to control the manner of pretrial proceedings due to the circumstances of the case. In the absence of an express referral by the trial judge, court ordered variances from the above authority, if permissible at all, must be made by the trial judge who has a bigger picture of the logistical difficulties in this case than does the undersigned, or who might handle the logistics of pretrial disclosures et al. differently than the undersigned.
What is Exculpatory or Impeaching Information
The operative definition for what is exculpatory or impeaching has been extensively set forth in
Rule 16 (a)(1)(E) and Materiality under subsection (I)
The last two subsections of Rule 16(a)(1)(E) are easily defined. Subsection (ii) requires disclosure of information which the government "intends" to use in its case in chief. This subsection does not require a binding promise on the part of the government that a document or other information disclosed will appear on an exhibit list; it does require a good faith determination of what the government presently possesses and might use at trial, i.e., a reasonable possibility. Any stricter definition than a reasonable possibility would render this subsection a dead letter — the government could always argue pretrial that it is not absolutely sure what it will use at trial and therefore, subsection (ii) never comes into play.
Subsection (iii) simply means what it says. If the government took a requested item from the defendant, or it otherwise belongs to the defendant, it is to be disclosed.
Accordingly, the government shall re-review the requests made by the defense to see if any of the requested items (or items within a described category) fit within the above two subsections. The government shall disclose such items/information within 20 days from the filed date of this order.
In its opposition, the government focused on subsection (i) — "material to the defense." This concept is disclosed at length below. In reality, there will be little disclosure under this subsection because exculpatory information will have been already disclosed, and impeaching (to a witness) material will be disclosed at an appropriate time. To the extent that information/items the government plans to use in its case in chief are "material" to the defense, it will have also been disclosed under the second subsection, as will items/information taken from the defendant under subsection (iii). Similarly, statements of the defense, under Rule 16(a)(1) will have been disclosed. One could ask — what's left that could be "material" to the defense?
The undersigned turns nevertheless to subsection (iii). As noted by the government, Rule 16 "is not the equivalent of a `request for production' in a civil suit, in that the defendant is not entitled to issue a generally worded request for production of documents or things of which their existence is only generally surmised, and might lead the defendant to relevant evidence."
General Orders and The Specific Requests Remaining at Issue
Because the government has not responded to all requests, or supplied
3. The government shall review all Rule 16 requests within the framework of "government" as defined herein, and supplement any disclosures within 20 days of the filed date of this order as appropriate except to the extent that the Rule 16 requests are not precluded in their entirety below; the court recognizes that the expanded definition of government to include the Zinnel bankruptcy trustee. The review should include all subsections of Rule 16(a)1)(E).
4. If after review the government determines that no further supplementation is appropriate, i.e., there are no further documents/information which meet the court's criteria, that fact shall be made known to defendants.
5. The government need not produce the tax returns, or tax return information, possessed by the IRS with respect to System 3 or any other person/entity related to this case.
The undersigned now turns to the disputed requests set forth in the Eidson Reply.
2. Ms. Eidson's emails and correspondence to and from Mr. Radoslovich concerning the settlement discussions and all versions of the proposed settlement agreement(s) exchanged between or prepared by the parties.
The government has agreed to produce these items but only to the extent that Radoslovich
5. All statements or alleged admissions made by any other alleged co-conspirator, including Mr. Zinnel and Mr. Wilbert, the government contends are admissible at trial pursuant to Federal Rules of Evidence Section 801, including all communications secured by all members of the prosecution team, and all handwritten notes memorializing such statements.
Prospective witness statements are governed by the Jencks Act.
In addition, the weight of authority does not count statements of a co-conspirator as statement of the witness to be disclosed in Rule 16 discovery. Although the Ninth Circuit has apparently not directly ruled on the issue, the circuit case law is nevertheless squarely against reading Rule 16(a)(1)(A) in this fashion, and has squarely rejected the lower court cases cited by Eidson/Zinnel.
8. The criminal records, if any exist, for Mr. Wilbert, or any person the government contends is a co-conspirator in this case.
9. The criminal record, if any, of the government's key witnesses, including Ms. Zinnel, Ms. Zinnel's boyfriend, Mr. Giovanini, Mr. Wilbert's attorney, Mr. Radoslovich, and, Mr. Zacharias and his attorney, Don Wanland. 8
The timing of disclosure of impeachment evidence, and criminal records of witnesses would be characterized as impeachment, is a matter of scheduling for the trial judge.
10. All correspondence, documents, emails and communications exchanged between any government agent or the Assistant United States Attorneys prosecuting this case, and the Bankruptcy Trustee or his counsel or the United States Trustee, and all reports or documents detailing any contacts between them.
11. All correspondence, documents, emails and communications exchanged between any government agent, including the FBI and IRS-CID agents investigating this case, or the United States Attorneys prosecuting this case, and any creditor involved in the bankruptcy proceedings and all reports or documents detailing any contacts between them.
The disclosure of
This civil case type documents request is denied except as set forth above.
12. All correspondence, documents, emails and communications exchanged between Ms. Zinnel or Mr. Giovanini and any government agent or the United States Attorney's Office during the investigation and all reports, memoranda, or notes concerning such exchanges.
This request is denied for the reasons set forth to Requests Nos.10, 11 with an additional comment. The government supplied the "confession" to a medical privacy HIPAA violation engaged in by Ms. Zinnell in her divorce proceedings (seeking medical insurance information to aid her divorce case). The undersigned has reviewed the statement and finds no
13. All correspondence, documents, emails and communications exchanged between Mr. Zacharias or Mr. Wanland and any government agent or the United States Attorney's Office during the investigation, and all reports, memoranda, or notes concerning such exchanges. This request includes copies of any script or list of questions provided or reviewed by the agents to use in connection with pending litigation with Mr. Zinnel.
14. All correspondence, documents, emails, text messages, communications and faxes exchanged between Mr. Wilbert and any government agent, including the FBI and the IRS-CID investigators, or the United States Attorney's Office during the investigation and all reports, memoranda, or notes concerning such exchanges. This request includes copies of any script or list of questions provided by the agents to Mr. Wilbert to use in connection with his recorded meeting with Mr. Zinnel held on December 3, 2008.
18. All correspondence, documents, emails and communications exchanged between Mr. Radoslovich and any government agent or the Untied States Attorneys' Office during the investigation, and all reports, memoranda, or notes concerning such exchanges. This request includes copies of any script or list of questions provided by the agents to Mr. Radoslovich to use in connection with the two recorded settlement meetings with Ms. Eidson held in February and March 2009.
These requests are denied for the same reasons given for Request No. 10 with one addition. The undersigned would find that a "script" or list of questions" given to undercover government informants would be material to the defense; however, the government has stated that no such items exist. To the extent that the government plans to use any evidence fitting the category described in its case-in-chief, which has not been heretofore disclosed, that evidence shall be identified and disclosed within 30 days from the filed date of this order.
22. As to Mr. Wilbert, identification and production of all Brady/Giglio materials, including reports, notes and memoranda of promises, offers, or threats not set forth in the formal proffer agreement or which records any statements made by the informant's counsel or the informant in emails, letters or conversations to induce the government to make the agreement in the first instance.
23. Documents relating to the informant authorization process, including (a) any authorization to record conversations by an attorney (Ms. Eidson) engaged in civil settlement discussion with opposing counsel; (b) all documents, including authorizations relating to the identification and approved use of Mr. Wilbert as a confidential informant; and (c) the confidential informant files for Mr. Wilbert, including the terms and conditions of his services, including confirmation of whether he was approved or paid as an informant by the government, is plainly material to the defense.
To the extent the request seeks
24. As to Ms. Zinnel: (a) her signed confession of illegal activity referenced in the FBI report (dated June 30, 2006, Bate #SZ034727); and (b) all notes, reports, and memoranda related to the HIPAA violation and the government's investigation.
25. As to Ms. Zinnel, all information and documents she provided to the government, including all reports memorializing same (only one is provided, dated 6/30/06, which only states that an interview took place) or which memorialize statements made by her or her counsel in emails, letters or conversations to induce the government to decline prosecution, or in furtherance of her cooperation with the government.
The "confession" has been previously identified as potential
The Eidson discovery motion (Docket #42), joined by Zinnel, and Zinnell's separate tax information disclosure motion (Docket #53), is granted in part and denied in part as set forth above.