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United States v. Valenzuela


December 22, 2008


The opinion of the court was delivered by: Margaret M. Morrow United States District Judge


Defendants are charged collectively with conspiracy to (a) import aliens for immoral purposes (i.e., prostitution) and (b) commit sex trafficking offenses in violation of 18 U.S.C. § 371. They are also charged individually with substantive counts of (1) sex trafficking of minors by force, fraud, and coercion (18 U.S.C. § 1591(a)(1)); (2) transportation of minors for purposes of prostitution (18 U.S.C. § 2423(a)); (3) importation and harboring of aliens for purposes of prostitution (18 U.S.C. § 1328); (4) harboring illegal aliens (18 U.S.C. § 1324(a)(1)(A)(iii)); and (5) transportation of illegal aliens (18 U.S.C. § 1324(a)(1)(A)(ii)).

On August 18, 2008, defendant Maria de los Angeles Vicente ("Vicente") filed a motion to dismiss the indictment, alleging prosecutorial suppression of exculpatory evidence.*fn1

Alternatively, Vicente sought an order compelling discovery and a continuance of trial. Defendants Gabriel Mendez and Gladys Vasquez Valenzuela joined the motion to dismiss on August 21, 2008.*fn2 Defendant Mirna Vasquez Valenzuela joined on August 22, 2008.*fn3


On June 25, 2008, the court directed all parties to complete an exchange of discovery by August 4, 2008.*fn4 Defendants received approximately 6,240 pages of documents, Bates-stamped, together with several CDs and other media, from the government by this deadline.*fn5 Various of the documents the government produced referenced law enforcement raids that occurred in October 2006.*fn6 These raids -- called "welfare checks" -- targeted several residences, including the residence where Vicente lived at the time.*fn7 On August 11, 2008, Vicente's lawyer, Jeff Price, emailed government attorneys Cheryl Murphy, Sarah Heidel, and Andrew Kline. Price requested disclosure of "all documents pertaining to all raids conducted during the months of October, November and December 2006, by the FBI, ICE and DOL-OIG, of all residences . . . in which the defendants and/or the alleged victims . . . resided."*fn8 Price asked the government to "acknowledge that such 'raids' did occur at the residences at which the defendants and alleged victims resided" and requested a reply within 24 hours.*fn9 Later that day, Assistant U.S. Attorney Cheryl Murphy confirmed receipt of Price's request but stated that she would be unable to respond within 24 hours.*fn10 Murphy offered no substantive response to Vicente's discovery request at that time.*fn11

On August 18, Vicente filed a motion to dismiss the indictment or, in the alternative, for an order compelling discovery and continuing the trial. Vicente alleged that the government had not provided "a single report from any law enforcement agency describing the October 2006 raids, or the planning, execution or operations related to the raids" by the August 4, 2008 discovery cutoff deadline.*fn12 She also asserted that, as of August 18, 2008, defendants had received no "written reports or case notes resulting from interviews with the occupants of the homes raided, nor . . . any search warrant affidavits or service reports, photos taken by law enforcement officers during the raids, evidence confiscated during the raids, . . . electronic eavesdropping and/or video recording devices installed or retrieved during the raids, or . . . copies of any recordings of telephone or radio communications between and among law enforcement agencies involved in the raids."*fn13

In his joinder, Mendez asserted that the government might be in possession of exculpatory evidence that it had not produced concerning cell phones in the alleged victims' possession while they were purportedly being held hostage.*fn14 Mendez also noted that the government had produced "several hundred pages of discovery related to a confidential informant" on August 12, 2008, after the court-imposed deadline, and that defendants had not had time, as of August 21, to review these materials and ascertain what, if any, exculpatory evidence they contained.*fn15 Given these purported discovery deficiencies, defendants maintained that the government had violated its duty to disclose exculpatory and/or impeachment evidence in contravention of Brady v. Maryland, 373 U.S. 83 (1963), and Giglio v. United States, 405 U.S. 150 (1972).*fn16

The day Vicente's motion to dismiss the indictment was filed, the government sent an email to defense counsel that attached forty pages of discovery materials;*fn17 much of this information concerned the October 2006 raids and other investigative activity by government officials in October and November 2006 (before defendants' arrest in December 2006).*fn18 One week later, immediately prior to the August 25 hearing on this motion, the government produced two CDs containing cell phone data retrieved from telephones purportedly used by the alleged victims.

Citing this chronology, Vicente asserts that the government has suppressed exculpatory evidence; she contends that this constitutes prosecutorial misconduct that has deprived defendants of their right to fair trial and due process of law and that warrants dismissal of the indictment.*fn19

Mendez asserts that the government's recent production of documents and cell phone records at a minimum merits a continuance so that defendants will have sufficient time to conduct follow-up investigations and review the newly produced materials.*fn20


A. Standards Governing Pretrial Disclosure of Evidence in Criminal Cases

The government has a constitutional duty to disclose, upon request, all evidence favorable to a defendant that is material either to guilt or to punishment. Brady v. Maryland, 373 U.S. 83, 87 (1963) ("We now hold that the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment"); United States v. Agurs, 427 U.S. 97, 106-07 (1976) ("In many cases, however, exculpatory information in the possession of the prosecutor may be unknown to defense counsel. In such a situation he may make no request at all, or possibly ask for 'all Brady material' or for 'anything exculpatory.' Such a request really gives the prosecutor no better notice than if no request is made. . . . But if the evidence is so clearly supportive of a claim of innocence that it gives the prosecution notice of a duty to produce, that duty should equally arise even if no request [or a general 'all Brady material' request] is made"); see also United States v. Ruiz, 536 U.S. 622, 627-28 (2002) ("[A] federal criminal defendant's . . . right to receive from prosecutors exculpatory impeachment material [is] a right that the Constitution provides as part of its basic 'fair trial' guarantee," citing Brady and U.S. CONST. AMENDS. V and VI).

Evidence "is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different." United States v. Bagley, 473 U.S. 667, 682 (1985); see also Strickler v. Greene, 527 U.S. 263, 280 (1999) (citing Bagley). The government's obligations under Brady are "not confined[,] [however,] to evidence that affirmatively proves a defendant innocent: Even if evidence is merely 'favorable to the accused,' its suppression violates Brady if prejudice results." Gantt v. Roe, 389 F.3d 908, 912 (9th Cir. 2004) (citing Brady and Strickler). When determining materiality for purposes of Brady, the allegedly suppressed evidence is "considered collectively, not item by item." Kyles v. Whitley, 514 U.S. 419, 437 (1995).

The Brady rule has been construed to include impeachment as well as exculpatory evidence. Giglio v. United States, 405 U.S. 150, 154 (1972) ("When the 'reliability of a given witness may well be determinative of guilt or innocence,' nondisclosure of evidence affecting credibility falls within this general rule" (citation omitted)); Bagley, 473 U.S. at 676 ("Impeachment evidence, however, as well as exculpatory evidence, falls within the Brady rule. . . . Such evidence is 'evidence favorable to an accused,' . . . so that, if disclosed and used effectively, it may make the difference between conviction and acquittal"). Thus, a promise of a benefit to a witness must be disclosed under Brady. See Giglio, 405 U.S. at 154-55 ("Here the Government's case depended almost entirely on Taliento's testimony; without it there could have been no indictment and no evidence to carry the case to the jury. Taliento's credibility as a witness was therefore an important issue in the case, and evidence of any understanding or agreement [with the government] as to a future prosecution would be relevant to his credibility and the jury was entitled to know of it").

The Brady obligation extends to all government actors, not just the individual prosecutor or prosecutorial team assigned to the case. See Kyles, 514 U.S. at 437 ("[T]he 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"); United States v. Blanco, 392 F.3d 382, 388 (9th Cir. 2004) ("A prosecutor's duty under Brady necessarily requires the cooperation of other government agents who might possess Brady material"). The prosecution's good or bad faith is irrelevant. Brady, 373 U.S. at 87; see also Giglio, 405 U.S. at 154 ("[W]hether the nondisclosure was a result of negligence or design, it is the responsibility of the prosecutor"). The prosecution's constitutional obligation to disclose material evidence to defendants is not "measured by the moral culpability, or the willfulness, of the prosecutor. . . . If the suppression of evidence results in constitutional error, it is because of the character of the evidence, not the character of the prosecutor." Agurs, 427 U.S. at 110 (footnote omitted). Given the considerable resources at the prosecution's disposal, and "inherent information-gathering advantages," "if there is to be any imbalance in discovery rights, it should work in the defendant's favor." Wardius v. Oregon, 412 U.S. 470, 476 n. 9 (1973).

B. Standards Governing Assessment of Alleged Brady Violations

"There are three components of a true Brady violation: The evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching; that evidence must have been suppressed by the State, either willfully or inadvertently; and prejudice must have ensued." Strickler, 527 U.S. at 281-82.

"As a matter of law, mere speculation by a defendant that the government has not fulfilled its obligations under Brady v. Maryland . . . is not enough to establish that the government has, in fact, failed to honor its discovery obligations." United States v. Upton, 856 F.Supp. 727, 746 (E.D.N.Y. 1994) (citations omitted); see also United States v. Michaels, 796 F.2d 1112, 1116 (9th Cir. 1986) (noting that mere speculation regarding the existence of potentially exculpatory evidence does not require the district court to make materials available for defendant's inspection; rather, defendant must make a specific request so that the court can determine if the evidence will affect the outcome of the trial).

Defendants, moreover, bear the burden of showing that the government has failed to disclose material or exculpatory evidence. See Harris v. United States, 9 F.Supp.2d 246, 275 (S.D.N.Y. 1998) ("[T]he government does not bear the burden of establishing that documents were not withheld; it is [defendant's] burden to prove that the government failed to disclose evidence favorable to [him]," citing United States v. Payne, 63 F.3d 1200, 1208 (2d Cir. 1995)). Conclusory allegations that the government has withheld evidence will not entitle defendants to relief or to an evidentiary hearing. See id. ("Conclusory allegations that the government 'suppressed' or 'concealed' evidence do not entitle [defendant] to relief; nor do they suffice to entitle [him] to an evidentiary hearing on whether documents were withheld").*fn21

When the government "represents that it 'has produced every document in its possession which relates in any way to [an issue]' . . . the court must assume the veracity of that representation." Upton, 856 F.Supp. at 746. To hold otherwise would require the court to assume an unmanageable oversight role. See id. ("The alternative to such an assumption would require the court to examine numerous file drawers of documents to verify [the government's] representation which is as obviously undesirable as it is impractical").

C. Whether to Grant Defendants' Motion to Dismiss the Indictment Based on Alleged Brady Violations

1. Exculpatory or Impeaching Evidence Favorable to the Accused

As of the August 25, 2008 hearing on this motion, defendants acknowledged receipt of the following Brady/Giglio material: (1) immunity agreements for government witnesses dating back to 2006;*fn22 (2) various interviews and other records concerning the October 2006 "welfare checks" conducted by law enforcement officials;*fn23 (3) compact discs containing electronic information from cell phones seized during the investigation;*fn24 and (4) additional compact discs containing Spanish telephone conversations, which may serve to impeach the government's confidential informant.*fn25

There are two additional categories of exculpatory or impeaching evidence, therefore:

(1) exculpatory or impeachment evidence derived from the government's ongoing pretrial interviews of the alleged victims; and (2) further materials generated by law enforcement agencies involved in the October 2006 "welfare checks."

2. Suppression of Brady Evidence

At the August 25, 2008 hearing, the court reminded the government of the August 4 deadline for reciprocal discovery,*fn26 and directed it to complete pretrial interviews of the alleged victims to determine whether any additional victims admitted that they had worked as prostitutes in Guatemala.*fn27 The government was instructed to disclose any further exculpatory evidence disclosed in the interviews,*fn28 including, but not limited to, exculpatory evidence on the subject of prior prostitution, to defendants on or before 12 noon on August 29, 2008.

As regards evidence related to the October 2006 "welfare checks," the government asserts that various reports, handwritten notes, and memoranda were discovered and disclosed to defendants between August 12 and 22, 2008, following receipt of the August 11 email Vicente's counsel sent requesting further evidence.*fn29 The evidence disclosed included an October 20, 2006 FBI report summarizing the "welfare checks" that were conducted on October 11, 2006; a December 6, 2006 ICE report describing statements made to an ICE special agent by an alleged victim during a "welfare check"; handwritten notes dated October 11, 2006 taken by an ICE special agent during the "welfare checks"; an October 20, 2006 FBI report reflecting statements made by one defendant's son during an October 11, 2006 welfare check; and an August 11, 2008 ICE report of an interview with another alleged victim.*fn30 The government also stated that it had contacted officials at the Los Angeles Police Department ("LAPD"), FBI, and ICE to obtain any further information or evidence generated during the October 2006 "welfare checks."*fn31 In response to its inquiry, the government received and produced to defendants two additional FBI reports, which described government efforts to obtain additional responsive information from the FBI and ICE; a letter describing the content of an internal ICE report referencing the October 2006 "welfare checks"; three pages of handwritten LAPD "daily logs," which referenced October 11, 2006 "welfare checks"; and a one-page "call out sheet" detailing an LAPD officer's response to a call regarding human trafficking on October 11, 2006.*fn32

The government represents that, contrary to Vicente's allegations, the Department of Labor Office of Inspector General ("DOL-OIG") and the Coalition to Abolish Slavery and Trafficking ("CAST") were not involved in the October 2006 "welfare checks."*fn33

Based on the present record, the court concludes that defendants have not established that the prosecution is suppressing exculpatory or impeachment evidence in violation of its Brady/Giglio obligations. To the contrary, the government responded to the August 11 email from Vicente's counsel by contacting agents and producing potentially responsive evidence to the defense.*fn34

3. Prejudice to Defendants

Although the government did not produce the material by the court-ordered discovery cutoff date of August 4, 2008, delayed disclosure of potential exculpatory and impeachment evidence does not constitute a Brady violation so long as defendants have the material in sufficient time to investigate and make use of it at trial. See, e.g., United States v. Davenport, 753 F.2d 1460, 1462 (9th Cir. 1985) ("Davenport further claims that the prosecution's failure at the pretrial hearing to disclose the fact that a witness to a lineup identification had previously been asked to identify the robber amounted to a suppression of exculpatory evidence under [Brady]. Disclosure, to escape the Brady sanction, must be made at a time when the disclosure would be of value to the accused. . . . Here, Davenport had access to the exculpatory information from the beginning of trial and made use of it in cross-examining a witness. The delay in providing the information does not, therefore, constitute a due process violation" (citations omitted)).*fn35 Put differently, showing that the prosecution has not disclosed exculpatory evidence is not enough to establish a Brady violation; defendants must also show that they suffered prejudice by demonstrating a reasonable probability that the outcome of the trial would have been different had the evidence been disclosed. Gantt, 389 F.3d at 913; Strickler, 527 U.S. at 263.

Defendants make no such showing here. Although the evidence in question was disclosed after the August 4, 2008 discovery cut-off date, the government produced the material before trial began. Disclosure came at a time when the evidence retained its "value to the accused[s]," as defense counsel will be able to utilize and/or incorporate the information moving forward. Particularly because trial has not yet begun, defendants cannot make the required showing that the outcome in their case would have been different.*fn36

4. Dismissal of Indictment is an Extreme Remedy

Dismissal of a valid indictment is an "extreme remedy," United States v. Lopez, 4 F.3d 1455, 1464 (9th Cir. 1993), and a "drastic step" that is "disfavored," United States v. Jacobs, 855 F.2d 652, 655 (9th Cir. 1988). "A district court may dismiss an indictment on the ground of outrageous government conduct if the conduct amounts to a due process violation." United States v. Barrera-Moreno, 951 F.2d 1089, 1091 (9th Cir. 1991) (citing United States v. Simpson, 813 F.2d 1462, 1464-65 (9th Cir.), cert. denied, 484 U.S. 898 (1987) (Simpson I)). "If the conduct does not rise to the level of a due process violation, the court may nonetheless dismiss under its supervisory powers. These powers may be exercised for three reasons: to remedy a constitutional or statutory violation; to protect judicial integrity by ensuring that a conviction rests on appropriate considerations validly before a jury; or to deter future illegal conduct." Barrera-Moreno, 951 F.2d at 1091 (citing United States v. Simpson, 927 F.2d 1088, 1090 (9th Cir. 1991) (Simpson II)). To violate due process, governmental conduct must be "so outrageous that due process principles would absolutely bar the Government from invoking judicial process to obtain a conviction." United States v. Restrepo, 930 F.2d 705, 712 (9th Cir. 1991) (quoting United States v. Russell, 411 U.S. 423 (1973)). In this case, the government has attempted to comply with its Brady/Giglio obligations, if belatedly, and responded promptly to defense requests for additional evidence. Its actions simply do not rise to the level of "outrageous" misconduct.

For a court to dismiss an indictment for prosecutorial misconduct under its supervisory powers, defendants must show both flagrant misbehavior and substantial prejudice. United States v. Kearns, 5 F.3d 1251, 1254 (9th Cir. 1993) (citing United States v. Jacobs, 855 F.2d 652, 655 (9th Cir. 1988) (per curiam)). The record here reflects neither. While it is true that a district judge may sanction prosecutorial misconduct that is neither flagrant nor prejudicial, "the sanction chosen must be proportionate to the misconduct," Jacobs, 855 F.2d at 655. In this instance, where the government has produced -- albeit belatedly -- additional Brady materials, dismissal of the indictment would be a disproportionate sanction.

D. Whether to Grant Defendants' Request for Alternative Relief

In the event her motion to dismiss is denied, Vicente seeks alternative relief in the form of an order compelling discovery and continuing the trial.*fn37 Mendez and Mirna Vasquez Valenzuela join in this request.*fn38

Following the August 25 hearing on this motion, the court issued an order on August 26, 2008, continuing the trial one week to September 9, 2008, and directing the government to complete its pretrial interviews of the alleged victims and disclose any Brady evidence developed as a result no later than August 29, 2008.*fn39 The same order severed trial of the charges against Vicente from trial of the charges against all other defendants because her attorney had health issues that precluded him from commencing trial on September 9.*fn40

On September 1, 2008, defendant Mirna Vasquez Valenzuela filed an ex parte application, which all other defendants joined, seeking reconsideration of the order severing Vicente for trial.*fn41

Defendants requested that the court order a joint trial; they alleged that there had been "significant cooperation and joint effort by defense counsel in preparing for trial . . . [and thus that] [t]he[ir] ability to render effective assistance of counsel depends on the preservation of that joint defense for trial."*fn42

The court heard defendants' ex parte application on September 4, 2008. Vicente's attorney asserted that there had never been a joint defense. Consequently, the court declined to continue the trial on the basis that his absence would prevent the remaining defense attorneys from providing effective assistance of counsel.*fn43 Given the government's tardy production of potentially exculpatory Brady materials, however, the court concluded that defendants should be given additional time to review and evaluate that evidence.*fn44 Consequently, the court continued the trial to January 6, 2008.*fn45

Given this procedural history, defendants' request for alternative relief is moot, as the continuance that was granted is adequate to permit defendants to review the potentially exculpatory evidence the government has produced and complete their pre-trial preparations.


Although they complain that their receipt of certain Brady/Giglio material has been delayed, defendants adduce no evidence that the government has withheld or is withholding exculpatory or impeachment evidence. Absent particularized allegations by defendants that the government has improperly withheld evidence, the court declines to find that the prosecution has failed to fulfill its Brady/Giglio obligations. Defendants' motion to dismiss the indictment based on prosecutorial misconduct is therefore denied. Defendants' request for alternative relief in the form of a trial continuance and/or discovery order are also denied as moot in light of the continuation of the trial to January 6, 2008.

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