ORDER RE DEFENDANTS' MOTION FOR DISCOVERY PURSUANT TO RULE 16
On December 16, 2008, this matter came before the undersigned for hearing on defendants' motion for an order compelling the government to produce documents and information in discovery pursuant to Rule 16 of the Federal Rules of Criminal Procedure and Brady v. Maryland, 373 U.S. 83 (1963). (Doc. No. 329.) Assistant United States Attorneys Bob Twiss, Ellen Endrizzi, Jill Thomas and Robert Tice-Raskin appeared on behalf of the United States. Federal Defender Daniel Broderick and Assistant Federal Defender Ben Galloway appeared on behalf of defendant Harrison Jack; attorneys John Balazs and Galia Phillips appeared on behalf of defendant General Vang Pao; attorney Mark Reichel appeared on behalf of defendant Lo Cha Thao; attorney William Portanova appeared on behalf of defendant Lo Thao; attorneys Jim Brosnahan, Raj Chatterjee and Nate Torres appeared on behalf of defendant Youa True Vang; attorney Krista Hart appeared on behalf of defendant Hue Vang; attorney Dina Santos appeared on behalf of defendant Chong Yang Thao; attorney Michael Bigelow appeared on behalf of defendant Seng Vue; attorney Shari Rusk appeared on behalf of defendant Chue Lo; attorney Dan Brace appeared on behalf of defendant Nhia Kao Vang; and attorney Hayes Gable appeared on behalf of defendant Dang Vang.
The court acknowledges at the outset that this is an unusual criminal prosecution, one in which the defendants are charged with conspiracy (18 U.S.C. § 371) to: violate the Neutrality Act (18 U.S.C. § 960)(Count I); receive and possess firearms and destructive devices (18 U.S.C. § 922(o)(Count IV); and export listed defense items without a State Department license (22 U.S.C. § 2778) (Count V). In addition, the defendants are charged with conspiracy to kill, kidnap, maim and injure people in a foreign country (18 U.S.C. § 956(a)) (Count II) and conspiracy to possess missile systems (18 U.S.C. § 2332g) (Count III). All five conspiracy charges relate to the defendants' alleged participation in a plot to ship weapons to Laos in order to facilitate the overthrow of the communist government of Laos and in aid of the ethnic Hmong living in that country. The discovery motion before the court, in keeping with the nature of the charges, is unusual both in its sheer breadth as well as with respect to the nature of the discovery sought.
For the reasons explained below, the defendants' motion will be granted in part.
THE DEFENDANTS' DISCOVERY MOTION
Through this motion the defendants seek an incredibly broad array of documents and information, including:
1. Documents evidencing communications by the government through any of its departments or agencies with the defendants or any other member of the Hmong population regarding the United States' policy, planning, or conduct toward the government of Laos for the 46-year period between 1961 and 2007.
2. Documents evidencing any overt or covert military planning or operations by the United States Government with respect to Laos the 46-year period between 1961 and 2007.
3. Documents regarding the persecution and attempted genocide of the Hmong in around Laos, apparently from January 1975 to the present, within the possession of the government and its departments and agencies including the State Department, the Central Intelligence Agency (CIA), the Department of Defense (DOD) and the National Security Agency (NSA).
4. Documents evidencing communications by the prosecution (including the U.S. Attorney's Office, the Department of Justice or agents working under their direction) with the CIA, other governmental agencies and the ATF agent regarding this case.
5. Any recordings or documents obtained by the government in its investigation that constitute or describe cell telephone calls, emails or other communications sent or received by any defendant that were intercepted by the program for presidentially approved warrantless interception of electronic communications (PAWIEC), the NSA and/or a Narus computer.
6. Any evidence of prior "bad acts" that the government intends to present in its case-in-chief at trial under Federal Rule of Evidence 404(b).
7. All other documents and information previously requested by the defense but not produced by the government to date. (Defs.' Mot. for Discovery at 2-4).*fn1
The defendants argue that they are entitled to all of the requested discovery under Rule 16(a)(1)(E)(i) of the Federal Rules of Criminal Procedure because these are materials in the possession of the government that are "material to preparing the defense." (Id. at 5.) In addition the defendants contend that much of the requested discovery would constitute evidence favorable to the defense which the government has an obligation to produce under Brady v. Maryland, 373 U.S. 83 (1963).
Specifically, defendants argue that documents evidencing communication by government agencies with the defendants or any other Hmong individual over the 46-year period between 1961 and 2007 regarding the United States' policy, planning or conduct towards the government of Laos is material to the defendants state of mind with regard to the alleged conspiracies as well as to their possible defenses of outrageous government conduct, entrapment and defense of others. (Id. at 7.) They argue that such evidence may help support the conclusion that some or all of the defendants would not have agreed to take any action against the government of Laos without the approval and support of the United States Government. (Id.) Finally, they contend that such evidence would demonstrate the defendants' lack of knowledge that the United States was "at peace" with Laos as required for conviction under the Neutrality Act, which criminalizes only "knowing" conduct. Defendants support their claim of entitlement to such discovery by pointing to aspects of the discovery provided to date which they contend indicate that the undercover ATF agent in this case and others led them to believe that they had the support of the United States Government, including those within the CIA and elsewhere, in their efforts which now find them charged before the court. (Id. at 8-13.)
The defendants next contend that documents reflecting overt or covert military operation by the United States in Laos between 1961 and 2007 are material to their defense against the conspiracy to violate the Neutrality Act charged against them in Count I of the indictment.*fn2 In this regard, the defendants argue that the government will have the burden of proving that the United States was "at peace" with Laos at the time of the defendants' alleged act of violating the Neutrality Act. (Id. at 13.) Relying on the decision in United States v. Terrell, 731 F. Supp. 473 (S.D. Fla. 1989), defendants argue that evidence of covert operation against the government of Laos either undertaken or supported by the United States Government would refute any evidence that the two countries were "at peace" within the meaning of the Neutrality Act and would obviously be very material to the preparation of the defense. (Id. at 14-15.) Moreover, defendants argue that to have conspired to violate the Neutrality Act they must have acted "knowingly" and that this mens rea requirement modifies each element of the crime. (Reply at 10.) Accordingly, they contend, the state of mind of each defendant as to whether the United States was "at peace" with Laos will be at issue at trial and necessitates the granting of the requested discovery. (Reply at 10-17.)
Defendants argue that they are entitled to discovery of documents "regarding the condition of the Hmong in around Laos since 1976, including the persecution of the Hmong and/or genocide by the Laotian government" because such information is material to a possible "defense of others" defense that might be raised by some defendants. (Defs.' Mot. for Discovery at 15-16.) Such discovery may, they argue, assist the defendants in establishing that they acted with the intent only to defend the Hmong people from persecution by the communist Laotian government and had no intent to murder or maim as charged in Count II of the indictment. (Reply at 18.) They argue that such documents are in the possession of the government and that having the government as the source of such evidence will increase its weight before the jury.
The defendants next contend that the government should be required to produce in discovery all documents evidencing communications by the prosecution with the CIA, other governmental agencies and the ATF agent regarding this case. Defendants assert in conclusory fashion that such communications are exculpatory information that must be disclosed under Brady. (Id. at 17.) Defendants make the same conclusory argument with respect to any documents reflecting communication by any person or agency with the undercover ATF agent regarding his activities in connection with this case. (Id. at 18.) Pointing to the prosecutor's statement at the July 12, 2007, bail hearing that, contrary to defendant Lo Cha Thao's representations in recorded telephone conversations, the prosecution had confirmed with the General Counsel's Office for the CIA that no contact had taken place between Thao and named CIA representatives, the defendants argue that the government has waived any work product privilege with respect to all such communications. (Id. at 16-17.)*fn3
Finally, the defendants argue that any documents prepared by the CIA or other agencies and shared with prosecution do not qualify as work product at all. (Reply at 18.)
Citing newspaper accounts and court decisions, the defendants argue that since September 11, 2001, the NSA and other intelligence agencies of the United State Government have been eavesdropping, monitoring international telephone calls and emails and may have surreptitiously intercepted domestic telephone and email messages. (Defs.' Mot. for Discovery at 19.) Accordingly, defendants seek discovery of all recordings or documents resulting from the interception of their telephone, email or other communications by presidentially approved warrantless interception, by the NSA and/or by a NARUS computer. They contend that all such communications would constitute statements made by a defendant subject to disclosure under Rule 16(a)(1)(A), are likely to include exculpatory information discoverable under Brady and must be produced regardless of whether they will be used by the government in its case-in-chief because the defendants are entitled to challenge their seizure, and any taint flowing therefrom, by way of motion to suppress. (Id. at 19-20.) Finally, defendants argue that the government should be required to produce an affidavit stating that a reasonably diligent search has been performed, describing the search and verifying that no responsive documents exist. (Reply at 20.)
With respect to any prior "bad acts" evidence covered by Federal Rule of Evidence 404(b), defendants contend that in light of the complexity of the conspiracy charges and the number of defendants named in the indictment, reasonable notice in this case should require that the government produce any such evidence it intends to present in its case-in-chief at least sixty days prior to trial. (Defs.' Mot. for Discovery at 21.)
As to the seventeen specific items of discovery set forth in Appendix E to their motion, defendants insist that the government has previously agreed to provide the requested discovery but has not yet done so, necessitating an order compelling production. (Id.; Reply at 25-26.) In their reply brief, however, defendants for the first time address their seventeen specific discovery requests set forth in Appendix E. They contend that because the ATF undercover agent referred to the defendants as "Neo Hom," the government is required to produce all documents regarding its investigation of the "Neo Hom" for the past ten years. (Reply at 20-21.) The defendants also contend that because the government interpreters are witnesses, their identities must be divulged to the defense. (Reply at 21-22.) Defendants also represent that prior to the arrests in this case government agents informed defendant Youa True Vang that he was being targeted for assassination and yet limited their discovery response to only representing that they were unaware of assassination attempts against defendant Vang Pao in the last ten years. (Reply at 22.) Defendants argue that the government should respond to this request with respect to all of the defendants as the request was posed. (Id.) In light of the government's response that it appears that the videotape of the 2007 search of defendant Youa True Vang's residence was either lost or recorded over, defendants make a broad claim of spoliation of evidence and argue that a "full evidentiary hearing into the spoliation of this evidence, as well as potential spoliation of any other evidence regarding this case" is required. (Id.) Finally, defendants assert that in light of the admitted communication between the prosecutors in this case and the CIA, the government's duty to produce discovery extends to information contained in the files of the CIA, the NSA and the State Department. (Id. at 24.)
THE GOVERNMENT'S OPPOSITION
The government's response to the pending motion commences with representations regarding the broad scope of discovery already produced to the defense, including approximately 41,320 pages along with CDs, other media and videotapes, beyond that required under Rule 16. (Opp'n at 1-3.) The government also notes the limitations on Rule 16 discovery and observes that the constitutional rights of a defendant are not violated every time the government "fails or chooses not to disclose evidence that might prove helpful to the defense." (Id. at 3-4.) The prosecution argues that Rule 16 does not mandate the type of discovery sought because the defendants have made no showing of materiality with respect thereto. (Id. at 4.)*fn4 Moreover, the prosecution contends that the investigating agencies in this case were the ATF and the FBI and that the prosecution has neither knowledge of or access to records that may exist at the CIA, NSA, DOD, State Department or any other federal agency such as those sought by the defendants through this motion. (Id. at 5.)
The prosecution also objects to defense representations that the government has agreed to produce certain discovery requested where, in fact, the government merely did not respond to the request with an objection. (Id. at 7.) In fact, the government asserts, it opposes practically every aspect of the pending motion as has been made clear in lengthy meet and confer sessions with defense counsel. (Id. at 7-8.) Finally, the government argues that it seeks reciprocal discovery from the defendants pursuant to Rules 12, 12.2 16(b) and 26(a) of the Federal Rules of Criminal Procedure, setting forth those discovery requests in considerable detail. (Id. at 41-44.)*fn5
Turning more specifically to the defendants' discovery requests, the government argues that the defendants are entitled to none of the requested discovery with respect to the charge that they conspired to violate the Neutrality Act (18 U.S.C. § 960). (Id. at 7, 30.) The prosecution notes that defendants seek wide-ranging, extremely voluminous (perhaps millions of documents) and highly sensitive discovery in this vein for the lengthy period of 1961 to the present*fn6 involving the world-wide Hmong community. (Id. at 19-21, 30.)
In this regard, the government argues that the defendants' belief of whether the United States was "at peace" with Laos is irrelevant under the law and evidence relevant to their mental state should be excluded from their trial, thereby precluding discovery in the area. (Id. at 7.) The prosecution contends that whether the United States is "at peace" with another country, as that phrase is used in the Neutrality Act, is determined by an objective standard. (Id. at 21.) The government asserts that under cases interpreting that language, the United States is not "at peace" when it is involved in a declared war or open and notorious active military operations against a foreign nation. (Id. at 22-23.) The prosecution essentially concludes that because the United States is obviously "at peace" with Laos, the defendants are not entitled to the requested discovery in this area and that granting such discovery would violate any number of governmental privileges. (Id. at 27, 30-31.)
Addressing the defense request for production of documents reflecting the persecution of the Hmong in and around Laos, the government notes that the discovery request is tied to potential affirmative defense of "defense of others." (Id. at 29.) However, they contend that the elements of the defense cannot be met here and that, in any event, the defense cannot be asserted with respect to a conspiracy charge. (Id.) Lastly, the prosecution argues that granting such discovery would violate any number of governmental privileges. (Id. at 33.)
With respect to the defendants' request for documents evidencing communications by the prosecution, the government responds that such communications are obviously work product and specifically not subject to disclosure in discovery under the law. (Id. at 27-28.) The prosecution also notes that defendants have made no attempt to show materiality with respect to this discovery request. (Id.)
In response to the defendants' request for cell telephone calls, emails or other communications sent or received by any defendant that were intercepted by the program for presidentially approved warrantless interception of electronic communications (PAWIEC), by the NSA or by a Narus computer, without waiving any privilege, the prosecution represents that other than calls intercepted pursuant to court-authorized wiretaps and pen registers, copies of emails seized pursuant to search warrants or undercover recordings of meetings attended by defendants, all of which the defense has received in discovery, no communications involving the defendants were intercepted by the NSA or any other government agency. (Id. at 33-35.)
Addressing prior "bad acts" evidence under Rule 404(b), the prosecution advises the court that it has notified the defendants in writing that it currently does not intend to introduce any such evidence. (Id. at 10.) The government states that if their ...