The opinion of the court was delivered by: Margaret M. Morrow United States District Judge
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT'S MOTION FOR DISCLOSURE OF BRADY MATERIAL RELEVANT TO SENTENCING
In this multi-defendant prosecution, defendants were 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 were also charged individually with substantive counts of (1) sex trafficking of children or by force, fraud, or coercion in violation of 18 U.S.C. § 1591(a)(1); (2) transportation of minors with intent to engage in criminal sexual activity in violation of 18 U.S.C. § 2423(a); (3) importation of aliens for immoral purposes in violation of 8 U.S.C. § 1328; (4) harboring certain aliens in violation of 8 U.S.C. § 1324(a)(1)(A)(iii) and (a)(1)(B)(i); and (5) transporting certain aliens in violation of 8 U.S.C. § 1324(a)(1)(A)(ii) and (a)(1)(B)(i).*fn1 A jury trial commenced on January 6, 2009 and concluded on February 3, 2009. On February 11, 2009, the jury returned guilty verdicts on twenty-one of the charged counts. The jury was deadlocked on the remaining nineteen counts. Sentencing is set for August 17, 2009.
On June 21, 2009, defendant Maria de los Angeles Vicente ("Vicente") filed a motion seeking disclosure of Brady material relevant to sentencing.*fn2 Defendant Gladys Vasquez Valenzuela joined the motion on June 26.*fn3 Defendant Mirna Vasquez Valenzuela joined on June 27.*fn4 Defendant Gabriel Mendez joined on June 28.*fn5 The government filed opposition on June 29.*fn6
I. FACTUAL BACKGROUND*fn7
On June 10, 2009, the probation office disclosed the presentence investigation report for Vicente; defendant contends the report "contains a number of allegations that . . . are inaccurate."*fn8 Vicente challenges the testimony of co-defendant and government cooperator Flor Morale Sanchez, who testified to Vicente's involvement in the charged offenses. The presentence report's offense level computation includes enhancements for Vicente's role in the offense*fn9 as well as additional enhancements for obstruction of justice*fn10 based in part on Morales Sanchez's testimony. Vicente seeks to impeach this testimony with evidence that she requests pursuant to Brady v. Maryland, 373 U.S. 83, 87 (1963), and its progeny.
A. Standards Governing Disclosure of Evidence under Brady
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). "The government's Brady obligations continue through the time of the sentencing hearing." United States v. Nikrasch, 25 Fed.Appx. 570, 572 (9th Cir. Dec. 26, 2001) (Unpub. Disp.) (citing East v. Scott, 55 F.3d 996, 1002-04 (5th Cir. 1995)).
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"). 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 its "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 ...