Wednesday, January 05, 2005

Rene Blanco: It Pays to Discover

United States v. Rene Blanco, __ F.3d __, 2004 WL 2979747 (9th Cir. Dec. 27, 2004); Discovery: Government’s obligation to disclose impeachment information in agent custody

Players: Victory by Michael Powell and Cynthia Hahn, FPD, Reno, Nevada. Judge Willie Fletcher authored a great opinion reminiscent of his mom, Judge Betty Fletcher.

Facts: Rene Blanco was charged with distribution of meth, and sought discovery about a key confidential informant. 2004 WL 2979747, *1. Despite many discovery demands, and several delays, at trial the defense still did not have impeachment information regarding immigration benefits expected by the informant. The AUSA defended this nondisclosure by protesting that DEA counsel had declined to provide the information sought. Id. at *8-*9.

Issue(s): Whether under Brady/Giglio, an AUSA must disclose impeachment information that is not in his possession, but is in the possession of a federal agency working on the case.

Held: "We hold that the government wrongly suppressed impeachment information about a confidential informant in violation of Brady and Giglio. We do not know whether there is additional Brady and Giglio material that the government has still not turned over to the defendant. We remand with instructions to the district court to order the government to reveal all information in its possession concerning the confidential informant. To the degree necessary and appropriate, the district court may inspect this material in camera." Id. at *1.
"There is no ambiguity in our law. The obligation under Brady and Giglio is the obligation of the government, not merely the obligation of the prosecutor. As we wrote in Zuno-Arce, "Exculpatory evidence cannot be kept out of the hands of the defense just because the prosecutor does not have it, where an investigating agency does. . . The JDS, the form agreement by the United States Attorney's office used in this case, misstates the obligation of the government under Brady and Giglio when it provides, "Such disclosure [under Brady and Giglio] is limited to evidence which is known by Government counsel or which could become known by the exercise of due diligence." The government has not discharged its obligation if the AUSA ("Government counsel") has exercised due diligence by asking the DEA for all Brady and Giglio material, and the DEA has refused to provide such information in its possession. To repeat, Brady and Giglio impose obligations not only on the prosecutor, but on the government as a whole. As we said in Zuno-Arce, the DEA cannot undermine Brady by keeping exculpatory evidence "out of the prosecutor's hands until the [DEA] decide[s] the prosecutor ought to have it." Id. The DEA agents in this case should have known–and the DEA counsel with whom the AUSA conferred almost certainly did know--the extent of the government's Brady obligation." Id. at 10.

Of Note: Besides welcome language for future discovery motions, the opinion also provides insight into specific materials to be sought in discovery. The case discusses a "DEA 473 form" which is an agreement that advises the informant "what he is ... allowed and what he is prohibited from doing." Id. at *6.
Note that the case opinion skirted harmless error review, and instead remanded for analysis of a potential Confrontation Clause violation. That’s a boon for discovery challenges, that are inevitably found to be harmless.

How to Use: Explicit reference to Blanco in discovery demands will put the government on notice to affirmatively obtain Brady/Giglio material from its agencies.

For Further Reading: The USAO has a web page boasting of the Blanco conviction. See this press release. Oddly enough, it has no web page describing its Brady/Giglio violation, the Ninth Circuit’s reversal, or the Court’s musing that dismissal for outrageous government conduct may be appropriate. See Blanco, 2004 WL 2979747, *11.

Steve Kalar, Senior Litigator ND Cal.


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