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August 18, 1995

EMANUEL LACY, et al., Defendants.

The opinion of the court was delivered by: MARILYN HALL PATEL

 In anticipation of pretrial evidentiary hearings in this matter, *fn1" defendants filed a motion for a ruling that the Assistant United States Attorney ("AUSA") himself must review the personnel files of federal agents called to testify at those hearings. By bench order at a motion hearing held on June 28, 1995, the court denied defendants' request. After further sua sponte review of Kyles v. Whitley, U.S. , 131 L. Ed. 2d 490, S. Ct. 1555 (1995), decided by the Supreme Court this term, the court issued an order on July 31, 1995 indicating its desire to reconsider the issue and ordering the parties to submit further briefing. The parties submitted simultaneous briefs on August 14, 1995, and oral argument was held on August 16, 1995.

 Having considered the parties' arguments and submissions, and for the reasons set forth below, the court enters the following opinion.


 In United States v. Henthorn, 931 F.2d 29, 30-31 (9th Cir. 1991), the Ninth Circuit held that the government has a duty to examine the personnel files of law enforcement officers it intends to call as witnesses upon a request by a defendant for production of such files, and to turn over to the defense any material in those files that is favorable to the defense.

 In denying defendants' motion to have the AUSA himself review the personnel files of testifying officers, this court based its ruling on the prevailing law in this Circuit, United States v. Jennings, 960 F.2d 1488 (9th Cir. 1992). In Jennings, the Ninth Circuit faced precisely the question presented by the defendants' motion, and ruled that an AUSA cannot personally be required to review law enforcement personnel files. Id. at 1491-92. Instead, the Ninth Circuit, noting the burden such a rule would place on a prosecutor and emphasizing that "the presumption is that the official duty will be done," approved a Department of Justice ("DOJ") procedure in which the relevant agency itself performs the review and then submits possibly relevant material to the AUSA for his or her determination as to whether it should be turned over to the defense. Id. at 1492, n.3.

 Subsequent to ruling on defendants' motion, this court examined Kyles v. Whitley, U.S. , 131 L. Ed. 2d 490, 115 S. Ct. 1555 (1995), a recent Supreme Court case cited only in passing in defendants' motion papers. It is on the basis of Kyles that the court ordered further briefing on defendants' motion, specifically on the issue of whether Kyles effectively overrules Jennings.

 In Kyles, which involved the government's duty to turn over potentially exculpatory material pursuant to Brady v. Maryland, 373 U.S. 83, 10 L. Ed. 2d 215, 83 S. Ct. 1194 (1963), the Court discussed at great length a prosecutor's duty under Brady, and the critical concomitant duty personally to become aware of any such material in the possession of other government actors. Id. at 1567-68. The Court wrote: "the individual prosecutor has a duty to learn of any favorable evidence known to the others acting on the government's behalf in the case, including the police." Id. at 1567.

 The State of Louisiana argued in Kyles that a prosecutor cannot be held to turn over Brady material in possession of the police but of which he is not personally aware. The Court rejected that argument in no uncertain terms, again focussing on the personal duty of the individual prosecutor:

To accommodate the State in this manner would, however, amount to a serious change of course from the Brady line of cases. In the State's favor it may be said that no one doubts that police investigators sometimes fail to inform a prosecutor of all they know. But neither is there any serious doubt that procedures and regulations can be established to carry the prosecutor's burden and to insure communication of all relevant information on each case to every lawyer who deals with it. Since, then, the prosecutor has the means to discharge the government's Brady responsibilities if he will, any argument for excusing a prosecutor from disclosing what he does not happen to know about boils down to a plea to substitute the police for the prosecutor, and even for the courts themselves, as the final arbiters of the government's obligation to ensure a fair trial.

 Kyles, 115 S. Ct. at 1568. The Court concluded that "this means, naturally, that a prosecutor anxious about tacking too close to the wind will disclose a favorable piece of evidence. This is as it should be." Id. (citation omitted).

 Defendants now argue that Kyles effectively overrules Jennings, because Jennings allows a prosecutor to delegate his responsibility to government agencies in Washington, over whom the court has no supervisory powers, and where numerous levels of attorneys and clerks unfamiliar with the specific factual context of the case filter through the material, sometimes at several levels and in several departments, before anything reaches the AUSA prosecuting the case. Defendants also argue that under such circumstances, it is highly unlikely that all information relevant to an effective cross-examination of government agents will even reach the AUSA, much less the defense. Defendants also contend that in fact there is no way effectively to hold a prosecutor responsible under the DOJ procedure because there is little if any chance that anyone, including, perhaps, even the AUSA him or herself, will ever learn that the agency failed to turn over relevant material.

 In response, the government insists that Kyles has changed nothing. Indeed, the government argues, all Kyles has done is reaffirm what the Ninth Circuit already has held in Henthorn and Jennings -- that the prosecution ultimately is responsible for turning over material potentially helpful to the defense, and will be held responsible for a failure to do so. The government argues that nothing in Kyles alters the Ninth Circuit's recognition in Jennings that such a responsibility does not also mandate that an AUSA him or herself personally review the files, but only that an effective procedure for doing so be put in place. The government argues that the DOJ procedure approved of in Jennings, and apparently now routinely followed by the government, is such a procedure. In support of this argument, the government submits declarations from various federal agencies detailing the process employed for complying with Henthorn requests. See Government Exs. A-E. *fn2" Finally, the government contends that to require individual prosecutors personally to review law enforcement personnel files would be unduly burdensome.

 This court concludes that Kyles effectively has overruled Jennings, to the extent Jennings permits prosecutors to delegate to the relevant federal agencies the responsibility under Henthorn to review personnel files. It is impossible to reconcile Justice Souter's emphatic discussion of the importance of the prosecutor's personal duty to comply with the government's Brady obligations with the Ninth Circuit's holding in Jennings that permits the prosecutor to delegate the very essence of that duty to bureaucrats in Washington. Far from supporting the government's position, the declarations submitted by the government raise more questions than they answer. It is not apparent from the declarations whether attorneys always perform the initial review of files -- it appears that clerks often perform some, if not all, of this vital function. Indeed, it is readily apparent that the various agencies' Henthorn processes *fn3" are something of a bureaucratic quagmire which involve a variety of people preparing "summaries" that bounce back and forth between supervisors, attorneys, and clerks, all before anything even reaches the desk of the AUSA ...

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