ORDER RE DEFENDANTS' REQUEST FOR RECONSIDERATION AND CLARIFICATION OF DISCOVERY ORDER
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 pursuant to Rule 16 of the Federal Rules of Criminal Procedure and Brady v. Maryland, 373 U.S. 83 (1963). (Doc. No. 329.) On May 9, 2009, the undersigned issued a detailed order granting the defendants' motion in part and denying it in part. (Doc. No. 422) (hereinafter "Order").
Defendants have filed a request for reconsideration and clarification of certain aspects of the court's discovery order. (Doc. No. 430.) The government has filed an opposition to the request for reconsideration and clarification (Doc. No. 433) and defendants have filed a reply. (Doc. No. 434.) None of the parties have sought a further hearing in connection with the pending request.
Below, the court will address each of defendants' requests for reconsideration and clarification. For the reasons explained, the request will be granted in part and denied in part.
A. Request That The Court Clarify Its Ruling Requiring the Production of Materials Concerning Overt or Covert U.S. Military Operations with Respect to Laos from January 1, 2005, through June 3, 2007
The court's discovery order of May 9, 2009, provided as follows:
[T]he question is whether the United States was "at peace" with Laos at the time the defendants acted.*fn1 Here, the defendants are charged with conspiring to violate the Neutrality Act "[b]eginning at a date unknown, but no later than in or about November of 2006, and continuing until on or about June 3, 2007[.]" (Indictment at 5.) The prosecution has appropriately suggested that any discovery of documents evidencing overt or covert military planning or operations by the United States Government with respect to Laos should therefore be limited to the few years prior to November 2006. [¶] Accordingly, the court will order the government to produce to the defendants all documents or communications in in its possession or control evidencing any overt or covert military planning or operations with respect to Laos from January 1, 2005, through June 3, 2007. Within sixty days of the date of this order the prosecution shall notify the court whether any such documents or communications have been discovered through a diligent search by the government and whether security clearances or further orders by the court will be necessary prior to production to the defense. [fn. omitted] [¶] In all other respects, the undersigned finds that the defendants have failed to make the required showing of materiality with respect to their request for 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. Accordingly, that overly broad discovery request will be denied except to the extent provided above.
Defendants now request that the court clarify that its discovery order requires the government to produce all documents or communications in its possession or control evidencing overt or covert military planning or operations with respect to Laos that may have been undertaken prior to January 1, 2005, but were still in effect as of that date, as well as documents generated between January 1, 2005, and June 3, 2007, relating to such operations considered or undertaken prior to January 1, 2005.
The government agrees that the court's discovery order requires that it produce documents reflecting covert or overt military operations with respect to Laos that commenced prior to January 1, 2005, but continued past that date and has agreed to produce such documents in discovery to the extent they exist. (Opp'n. at 1-2.) However, the government objects to defendants' attempt, by way of request for reconsideration, to expand upon their original discovery request so as to include "contingency plans" or operations that were considered by the U.S. government but not implemented. The government's opposition in this regard is well-taken.
In their original discovery motion the defendants sought documents evidencing any overt or covert military planning or operations by the United States with respect to Laos during the 46-year period between 1961 and 2007. The discovery request did not seek documents evidencing "contingency plans" or military operations considered but not acted upon. It is not appropriate to expand the original discovery motion through a request for reconsideration. More importantly, even if the original discovery motion sought such information, the undersigned would deny that aspect of the request. As previously noted, "the question is whether the United States was 'at peace' with Laos at the time the defendants acted." (Order at 25-26.) Whether the United States had considered military operations with respect to Laos but never acted upon any "contingency plan" is not relevant to the question of whether the United States was "at peace" with Laos during the time period the defendants are charged to have acted within.
Accordingly, the defendants are not entitled to discovery of documents evidencing "contingency plans" or military operations considered but not acted upon. Their request for reconsideration or clarification in this regard is denied except to the extent that the government is ordered to produce documents relating to covert or overt U.S. military operations with respect to Laos that commenced prior to January 1, 2005, but continued through and/or after that date.
B. Request For Reconsideration That An Order Issue Requiring the Government to Produce Any Copies of a "Genocide Order" or ...