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United States v. Salyer

July 8, 2010


The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge


Introduction and Summary

Defendant, Frederick Scott Salyer, ("Salyer") has made a comprehensive discovery motion in this criminal action. Salyer lists 87 categories of information, some with sub-categories which he desires produced. The motion encompasses several themes which will be discussed in detail below. One theme is -- "who is the government" for criminal discovery purposes. Another appearing from the papers focuses upon the extent to which the government must organize the discovery information it discloses to a defendant along with the timing of discovery disclosures. A third theme centers on the materiality standard of evidence. Finally, the fourth major theme is the extent to which a defendant's Fifth or Sixth Amendment rights override express limitations in the discovery rules including work product, in essence, requiring the introduction of civil discovery concepts into criminal law.

Salyer's motion is granted in part and denied in part.


On April 29, 2010, the United States (government) filed a superseding indictment alleging RICO violations, wire fraud, record keeping destruction et al. involving a federal investigation, conspiracy in restraint of trade and forfeiture counts. The indictment stems from the government's investigation disclosing (in its view) that Salyer and others associated with the now bankrupt SK Foods for an approximate ten year period: bribed other entity's purchasing managers to obtain contracts for SK products at prices higher than the market would otherwise dictate; caused the shipping of foods which were either misbranded, deficient in quantity, and deficient in quality or all of the above; fixed prices in violation of the Sherman Act. Finally, the government believes that Salyer obstructed justice in terms of altering corporate records in an attempt to conceal a co-conspirators involvement with SK Foods. To the extent more substantive factual background is necessary, it will appear in discussions of individual discovery requests.

The undersigned is not in possession of any initial written discovery request, and evidently there have been a number of oral demands for discovery made by Salyer. Given the time period relevant to the investigation, the rather large volume of business undertaken by SK Foods, the implementation of Title III wiretaps, the number of persons who have pleaded guilty already, and the inherent document intensive nature of investigations into business crimes, a great deal of documentary evidence is potentially at issue. The government, in the words of Salyer, has disclosed discovery "like a restless volcano...periodically spew[ing] forth new discovery"*fn1 in a massive, disorganized mess. The exhibits to this discovery motion indicate that the government has produced discovery at various intervals commencing in or about March 2010. The government contends that a defendant should be careful what he periodically asks for, i.e., he is provoking the volcano, in terms of quantity of information requested "helpful to the defense," and that it is under no obligation to prepare defendant's case by organizing the requested volume of information thereby disclosed.*fn2 The government further contends, in essence, that Salyer has mistaken Fed. R. Civ. P. 34 (requests for production in a civil case) with Fed. R. Crim. P. 16.

The government asserts that it has disclosed: every confidential source recording; every wire intercept, every interview report; every search warrant inventory, every property receipt, every plea agreement; valuable government work product that sorts and analyzes seized records; and all business records obtained from third parties....Also available for the defendant's inspection and copying are other records seized from SK Foods. This ruling process of production began four days after the Defendant made his Rule 16 request for discovery.

Opposition at 1-2


The Defendant has received copies of, or has been given access to, all of the tangible evidence seized, subpoenaed, or otherwise received in Operation Rotten Tomato. The Defendant has also received copies of Government memoranda, witness statements, and impeachment materials sufficient for him to understand any defense to the Government's case-in-chief, and even, each substantial step in the investigation.

Opposition at 4.

The undersigned will plod through each of the 87 requests with subparts, infra. The sections which immediately follow will discuss the issue which are germane to adjudicating each request.

Criminal Discovery -- In General

"There is no general constitutional right to discovery in a criminal case." Weatherford v. Bursey, 429 U.S. 545, 559, 97 S.Ct. 837, 51 L.Ed.2d 30 (1977). Over time a patchwork of statutory and judge-made rules has evolved to govern criminal discovery. Those rules include: (1) the Jencks Act; FN4 [omitted](2) the Federal Rules of Criminal Procedure; and (3) Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).


Rule 16 of the Federal Rules of Criminal Procedure governs criminal discovery. It has been significantly expanded since the Rules were first adopted, and it now imposes discovery obligations both on the government and the defense. See Fed.R.Crim.P. 16 (1966 Amendment); id. (1974 Amendment); id. (1975 Enactment). Unlike civil discovery, where some materials are automatically produced as a matter of right, in criminal discovery, the defendant must invoke the right to discovery. Compare Fed.R.Crim.P. 16(a)(1) with Fed.R.Civ.P. 26(a). Once a defendant makes a Rule 16 discovery request and the government complies, the government is entitled to seek reciprocal discovery from the defendant. See Fed.R.Crim.P. 16(b)(1). Work product of the United States and of the defense are not subject to discovery under Rule 16. See Fed.R.Crim.P. 16(a)(2), 16(b)(2).

United States v. Fort, 478 F.3d 1099, 1103 (9th Cir. 2007).

With respect to Fed. R. Crim. P. 16 discovery, a recent Ninth Circuit case found that Rule 16 "grants criminal defendants a broad right to discovery." United States v. Stever, 603 F.3d 747, 752(9th Cir. 2010). "Broad" was undefined, and the undersigned does not view this term at odds with long established authority which recognizes only a "limited" right to discovery in criminal cases:

A criminal defendant is entitled to rather limited discovery, .... In a civil case, by contrast, a party is entitled as a general matter to discovery of any information sought if it appears "reasonably calculated to lead to the discovery of admissible evidence." Fed. Rule Civ. Proc. 26(b)(1).

Degen v. United States, 517 U.S. 820, 826, 116 S.Ct. 1777, 1781-82 (1996).

See also Bowman Dairy Co.v. United States, 341 U.S. 214, 220, 71 S.Ct. 675, 679 (1951) (It was not intended by Rule 16 to give a limited right of discovery, and then by Rule 17 to give a right of discovery in the broadest terms.)

Perhaps discovery is broad within the limited areas of discovery.

Finally, courts have distinguished between evidence that is exculpatory, and thus discoverable under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194 (1963) along with its progeny, and evidence that is material and thus discoverable under Rule 16. See United States v. Sanders, 893 F.2d 133, 137 (7th Cir. 1990) ("Due process requires the government to disclose exculpatory evidence [citing Brady ]; Rule 16 provides for the production of other evidence."); United States v. Messerlian, 832 F.2d 778, 795 (3d Cir.1987) ("Under Rule 16(a)(1)(D), the information that the government must disclose need not be exculpatory; it merely must be material to the preparation of the defense."). In general, the non-exculpatory material is often inculpatory (as such can be helpful in preparing the defense); if it were exculpatory, Brady would require its disclosure in any event. A metaphysical issue is present here in that Salyer asks for non-inculpatory, but not exculpatory, information which may be helpful to the defense. The line between non-inculpatory, helpful information and exculpatory information is difficult to draw.

Finally, while the Constitutional underpinnings of requiring production of exculpatory (Brady) and impeachment evidence (Giglio) are the same, the courts have developed different timing mechanisms regarding production of each. See United States v. Hopkins, 2008 WL 4453583 (E.D. Cal. 2008).

Timing of Discovery Production

The undersigned is not in a position to fault the government for the timing of discovery disclosure. Not only has the original written request not been made available, but there have been mostly undescribed oral requests. Neither party has made known what was initially, specifically requested, and when the specific information was produced.

In a case such as this, with volumes of potential discovery, the parties would be wise to request that the district judge assign a magistrate judge to hold a discovery conference and for that judge to be the assigned a judge for discovery purposes. In that way some form can be given to the initial processes, e.g., timing can be decided, organization of discovery can be initiated, clarifications to requests can be made, format of discovery decided, potential problems quashed and the like.

A further problem exists in this case, and in many other cases. The Congress and the Ninth Circuit, perhaps not contemplating problems in documents intensive cases, have been very restrictive in terms of timing of certain types of disclosures. Impeachment material is not due until after a witness testifies. United States v. Rinn, 586 F.2d 113, 119 (9th Cir. 1978) (Giglio material need not be disclosed until after a witness (Giglio material need not be disclosed until after a witness testifies)). Witness statements, impeaching or not, are also similarly timed pursuant to the Jencks Act, 18 U.S.C. § 3500. The Ninth Circuit has explicitly held that even Brady material, with respect to witness statements, is subject to the strictures of the Jencks Act. United States v. Jones, 612 F.2d 453, 454 (9th Cir. 1979). More will be said about this later. Identification of witnesses pretrial is a matter of discretion in the first place, W R Grace, 526 F.3d 499 (9th Cir. 2008) (en banc), much less providing impeachment information or statements for a witness. The United States has nevertheless produced some of this material early, but resists disseminating anything further pursuant to Rule 16. A significant part of the information sought by Salyer runs afoul of the above authority.

In the absence of an express referral by the trial judge, court ordered variances from the above authority, if permissible at all, must be made by the trial judge who has a bigger picture of the logistical difficulties in this case than does the undersigned, or who might handle the logistics of pretrial disclosures et al. differently than the undersigned. This ruling, or deferral of ruling, as will be seen, is dispositive of a great deal of Salyer's requests.

Privileged Requests

Without specifying how with respect to each individual request, Salyer generally contends that allowing the government to assert privilege violates his Constitutional rights. This cannot be, however, because the Supreme Court has stated, as set forth above, that there is no Constitutional right to discovery. Weatherford v. Bursey, 429 U.S. 545, 559, 97 S.Ct. 837 (1977). See also United States v. Armstrong, 517 U.S. 456, 116 S.Ct. 1480 (1996) (defendant not entitled to discovery to mount an affirmative defense). It follows that if there is no Constitutional right to discovery in the first place, the federal rules and statutes which allow limited discovery cannot generally be unconstitutional because of their limitations.

This is not to say that a particular discovery limitation as applied to a particular circumstance, i.e., the limitation prevented specific and highly probative discovery on the entire theory of the defense, could not be found to be unconstitutional. See United States v. Stevers, supra. In that case the defendant had proffered a specific defense, and the Ninth Circuit held that the combination of limiting a specific discovery request for which a specific showing of materiality had been made, along with evidentiary ruling at trial which did not permit the specific defense to be supported, violated the Sixth Amendment right to present one's defense. Stevers, 603 F. 3d at 755. However, this situation is a far cry from simply and generally asserting that if the government asserts privilege to any of Salyer's general requests, for which a specific showing of materiality has not been made, Salyer's right to present a defense has nonetheless been violated. If this were the case, any limitation in federal discovery would be unconstitutional simply because a defendant had asked for discovery, but was precluded from getting it by the terms of Rule 16 or case law. United States v. Fort, 478 F.3d 1099 (9th Cir. 2007), one of the many cases which, for example, have upheld the government's assertion of work product privilege, would be implicitly overruled by Stever. See also United States v. Amlani, 111 F.3d 705 (9th Cir. 1997) (internal government logs privileged from disclosure). Obviously, all of Rule 16 and case law has not been declared facially unconstitutional as intimated by Salyer. Stever is limited to a situation where to uphold the privilege would be to cut out the heart of the defense.

In the present motion, Salyer has made no showing to any degree that upholding the government's work product privilege as set forth in Rule 16 and case law, or to respect any other limitation to federal criminal discovery, would so eviscerate the defense as to be unconstitutional.

Moot or Fully Answered Requests

Because the parties only generally identified what had been produced already, indeed, a massive amount of material, it was not possible for the undersigned to read Salyer's Rule 16 motion with its 87 plus sub-category requests with any idea whether the information had been provided already in whole, or in part, or whether the government had any idea that further documentation pertinent to the requests existed at all. In accordance with the undersigned's pre-hearing order, the government identified for each particular request whether it had disclosed all documents to the best of its knowledge, whether such was not the case, or whether it was unsure. In addition, the government identified for each request, information withheld because of privilege, primarily that work product. The requests which have been mooted by the government's disclosure have been set forth below in the request-by-request analysis.

Organization of Disclosed Discovery

Rule 16, unlike its civil counterpart Rule 34, is silent concerning the manner in which disclosures are required to be organized. See United States v. Pearson, 340 F.3d 459, 468 (7th Cir. 2003), vacated on other grounds, Hawkins v. United States, 543 U.S. 1097 (2005) (refusing to find the government at fault for not organizing Rule 16 discovery when the rule is silent). The government has, in very broad brush form, indicated what it has disclosed, but it has not been organized in any fashion except for bate stamping or general characterizations of sometimes massive amounts of individual information, e.g., documents seized in search warrant X. Case law discussing the organization of documentary discovery disclosed by the government is virtually non-existent. The legal issue here, as in many cases of first impression, involves a push versus pull -- the principle that the court should not impose a large, substantive modification/supplementation to the discovery rules by judicial fiat, with the counter-principle that a court should be allowed case management discretion in applying the written word in an extraordinary case.

The Ninth Circuit can draw a rigid line when it so desires. See e.g., United States v. Rinn, supra. However, in analogous areas, the Ninth Circuit en banc has also approved of Rule 16 "supplementation that makes sense" (undersigned's characterization). In United States v. W.R. Grace, 526 F.3d 499 (9th Cir. 2008) (en banc), a case involving many witnesses and complex issues, the Ninth Circuit endorsed the district court's ability to order the pretrial preparation and filing of a witness list in an appropriate case even though Rule 16 was silent on the topic. The Court also held that the district court could order that an expert disclosure was required to include documents that the expert had reviewed in arriving at his or her opinion. See also United States v. Anderson, 416 F.Supp.2d 110, 113-114 (D.D.C. 2006) (government must categorize the documents it intends to use in its case-in-chief as opposed to other documents produced as "helpful to the defense.") But see United States v. Ferguson, 478 F. Supp. 2d 220, 243-244 (D. Conn. 2007) (questioning its authority to divert greatly from the express wording of Rule 16).

Some flexibility in application of the rules is commanded by the rules themselves. Fed. R. Crim. P. 2 admonished the court to interpret the rules to secure just and fair results, and to eliminate unjustifiable delay and expense. Fed. R. Crim. R. 57(b) provides that the court may "regulate practice in any manner consistent with federal law, these rules and the local rules of the district." (Emphasis added). The undersigned rejects the notion that this flexibility makes all the written words of the substantive rules superfluous, and rejects the notion that a judge can do anything simply because of a belief that he or she "knows better" than the rule makers. On the other hand, the undersigned rejects the notion that common sense cannot play a part in the administration of justice.

Therefore, as set forth at hearing, the undersigned requires that organization of discovery take place in accordance with the categories and sub-categories of discovery explicitly set forth in Rule 16 itself. While organizing massive amounts of evidence after the fact of all of its receipt may appear overwhelming, AUSAs and investigators can rather easily make this organization piecemeal as the evidence in a case comes in, and if they have not done so, would have to perform this organization in any event at some time if the case is ever to go to trial. In other words, performing an organizational task sooner rather than later is not the type of burden which concerns the undersigned to a great degree when there is a real and practical reason for performing it. Salyer's argument that he should not have to sift through millions of pages of documents to determine, for example, if a defendant's written statement has indeed been disclosed, has much force. Moreover, the incremental organization of massive amounts of documentary discovery into the easy-to-discern Rule 16 categories also enables the government to perform its Brady-Giglio/Rule 16 obligations in a timely fashion. Utilizing organizational categories is the only realistic way that government attorneys can determine if they really have performed their discovery obligations, and avoids the "oops" disclosures just prior to trial, or even during trial.

The organizational disclosure can be made in individual packets that conform to the individual disclosure requirements, or can be satisfied by a prepared index with referenced Bate stamped page numbers. Of course, in a reasonable, rolling type production, an index can be amended.

Further, the government may not choose to lump all of its disclosed category into a Rule 16(a)(1)(E)(I) or any other (E) category thereby defeating the purpose of categorization. "Material helpful to the defense" or documents that the government "plans to use in its case in chief" or "items taken from the defendant" are residual categories for information not otherwise able to be organized in the other subsections of Rule 16(a). That is, a defendant's oral statements, for example, are categorized under Rule 16(a)(1)(a)(A); a scientific test is categorized under Rule 16(a)(1)(F). Salyer's point is well taken that statements of the defendant and scientific test should not be buried amidst an avalanche of other information -- including a vast array of Title III tape recordings.

The undersigned does not require that the government further organize those documents appropriately produced under the sub-categories of Rule 16(a)(1)(E). If a defendant actually needs to know what specific documents the government plans to use at trial, Fed. Crim. R. 12(b)(4) (B) provides that avenue. No such request is at issue here. Moreover, a defendant can review any of the "E" sub-categories and understand without being told the vast majority of documents or items that are important to the government's case, or what might have been taken from the defendant. Moreover, the undersigned does not agree with Salyer that the government is tasked with further organizing the "material to the defense" category of discovery into whatever categories the defense might imagine. As set forth below, the government should not be punished with preparing the defense case simply because it errs up front in an abundance of caution in producing information which is "arguably" helpful to the defense. Moreover, it is ultimately the defendant's opinion as to whether the information is material; as explained above, in a general sense, everything inculpatory might be determined to be helpful in preparing a defense if only as to how to avoid the sting of the evidence. The court would push flexibility too far if it were to mandate that the government organize voluntarily produced "material" evidence as ordered by a defendant.

At hearing, the government graciously volunteered that it would serve its index of documentary and electronic evidence, prepared for its own purposes, on defendant. This is above and beyond what the court could order for Rule 16 (a)(1)(E) materials whether or not the index is as complete as Salyer would prefer.

Finally, the court orders a limited organization of Brady/Giglio material. There exist several situations to address: already disclosed documents or materials; Brady exculpatory information yet to be disclosed, both in the form of witness statements and non-witness statements; and Giglio information yet to be disclosed.

To the extent that discovery has been disclosed to Salyer, it will not do to state that "to the extent Brady/Giglio material is present, defendant will 'know it when he sees it'" -- i.e., Salyer can wade through piles of documents or gigabytes of disclosed discovery to find it, and if he is lucky, the information will bite him much as a fisherman may eventually hook a fish by casting aimlessly without bait, if he casts long enough. Prosecutors have a duty to disclose what they reasonably view as exculpatory or impeaching material. Kyles v. Whitley, 514 U.S. 419, 437, 115 S.Ct. 1555, 1567 (1995) (quoting the ABA rule on point). Although in performing that duty they have been instructed to not "tack[] too close to the wind," id. 439, 115 S.Ct. at 1568, this does not mean that in a case such as this, prosecutors can goto the extreme of disclosing everything as possible Brady/Giglio material such that a pearl of exculpatory or impeaching information is inevitably lost in the sea of the mundane. In other words, at some point (long since passed in this case) a duty to disclose may be unfulfilled by disclosing too much; at some point, "disclosure," in order to be meaningful, requires "identification" as well.

To the extent that otherwise presently known, Brady/Giglio disclosable information has not yet been released, the United States accurately cites United States v. Jones, supra, in arguing that exculpatory material, subject to the Jencks Act, need not be disclosed until required by that Act. "Brady does not overcome the strictures of the Jencks Act." Jones, 612 F.2d at 454. One judge of this district has held that Jones has been superseded by later announced Supreme Court authority. United States v. Sablan, 2009 WL 3379011 *4 (E.D. Cal. 2009 OWW). However, with respect, the undersigned does not view the cited Supreme Court authority as expressly controlling the timing of Brady "witness statement" discovery such that it can be said that a Ninth Circuit precedent, old as it may be, has been overruled. However, Jones does not preclude identification of the yet-to-be disclosed exculpatory information. Similarly, as previously discussed, Giglio impeaching information generally need not be disclosed until a witness testifies, but again, pre-disclosure identification of that material has not been precluded.

With respect to this information which has not yet been turned over to the defense, and judging by the government's unwillingness to presently disclose Giglio or Brady (witness statements) there still exists, apparently, significant amounts of information which have not been turned over to the defense, Brady/Giglio duties are at their maximum. The court will order its identification.*fn3

Finally, there may be a significant amount of information already acquired by the government pertinent to the Salyer investigation which the government has not yet reviewed. However, the vast amount of material in the possession of the government was seized, subpoenaed, or otherwise acquired on the ostensible basis that it was relevant to the investigation. If the undersigned's surmise is correct, and there still exists a reservoir of unreviewed materials, the court will not permit the government to avoid its Brady/Giglio obligations by holding, in essence, that the prosecutor can negate Constitutional imperatives by purposefully deciding not to review what was seized, or delaying until the last moment that review.

Therefore, the government shall, within twenty-one (21) days of the filed date of this order, identify what it believes can be reasonably construed as exculpatory or impeaching material:

(1) for documents already disclosed, the government shall specifically identify by Bate Stamp number or by specific title and location, the information which a reasonable prosecutor would view as exculpatory or impeaching;

(2) for documents yet to be disclosed, and subject to the Jencks Act, as well as normal Giglio disclosure, the government shall identify those documents or information in its possession, by author, date, subject matter, or other appropriate identifiers, which a reasonable prosecutor would view as exculpatory or impeaching;

(3) for exculpatory information not yet disclosed which is not subject to the Jencks Act, and which has not been disclosed, the government shall disclose it forthwith.

While the government's disclosures pursuant to the above are not an admission of what the trier of fact may ultimately determine to be exculpatory or impeaching, it will give Salyer a fair opportunity to understand the information which can reasonably be argued as such. Who Is the Government

Defining the "government" is important in criminal discovery matters because the prosecution does not have to scour the files of every governmental agency on the chance that some pertinent information, or information that the defendant deems pertinent, may be disclosed. United States v. Bryan, 868 F.2d 1032, 1036 (9th Cir. 1989). The prosecution does not become the FOIA (Freedom of Information Act) agent for the defense. However, "[t]he prosecutor will be deemed to have knowledge of and access to anything in the possession, custody or control of any federal agency participating in the same investigation of the defendant." Id.

The above presumption is all that is needed in the vast majority of criminal cases in that it is seldom the case that federal agencies outside of the agencies interested and participating in the investigation will documents material to the case. However, the Ninth Circuit has made clear that the presumption is not necessarily the end point of the analysis depending on he case. United States v. Santiago, 46 F.3d 885 (9th Cir. 1995). In Santiago, the Ninth Circuit held that prison files in the possession of the federal Bureau of Prisons, an agency within the Department of Justice, would be "in the possession" of the United States Attorney because the BOP was a sister agency, and the prosecutor has actually acquired a good bit of information about the case by simply requesting it from the BOP. Id. at 893-94. The fact that the BOP was not the "investigating agency" was not determinative. "Access" to the requested information was the key, and such access was to be determined on a case by case basis.

In this case, the parties agree that documents within the possession of the United States Attorney's Office, the Anti-Trust Division of the Department of Justice, the FBI, IRS-CI (criminal), the USDA and FDA are the "government" for the purposes of this case. Salyer would add to that list, specifically, the Department of Commerce, the entire Department of Justice, the United States Trustee, the Office of the Inspector General and generally, any other agency or department of the United States (setting forth the agencies but indicating "not limited to.") See Footnote 14 on p.19 of Salyer's Motion.

To the extent that Salyer requests that the United States search every governmental agency for the requested documents, the request is denied as not being based on any authority. Of course, to the extent that the United States Attorney or any of the agreed-to agencies have any of the documents in their actual possession, and these documents are otherwise material, they must be disclosed regardless of the original source of the documents or however acquired.

In determining whether the additional federal agencies or entities to which Salyer directs his requests have documents "in the possession of" the prosecution, a reasonable, balanced approach must be undertaken. To the extent that the agencies have supplied significant amounts of information to the prosecutor or investigators upon which the government will rely in this case, upon their request, like the situation of the BOP in Santiago, such documents are in the possession of the government for the purposes of this case. However, to the extent that the prosecution and investigators have simply queried agencies, private entities, or persons to confirm or dis-affirm leads, theories, facts, and have obtained a stray document or two, these agencies or persons are not within the government for purposes of this case. Nor are agencies which were, or have to be, subjected to formal processes to obtain information considered to be within the control of the "government" for purposes of this case. Thus, for example, simply because the United States obtained documentary information as a result of subpoena or search warrant does not place all documents of those entities or persons within the possession of the government for defendant's further requests. The need for formal process in the acquisition of documents is the antithesis of "access" as defined by the above cases.

At hearing, the undersigned queried the government extensively with respect to its contacts with the Department of Commerce and the United States Trustee. Contact with Commerce was almost nil. Although the government attorneys have had meetings with the United States Trustee concerned with the SK Foods, et al. Bankruptcy, such informal contacts have not risen to the level where the United States Trustee would be considered the "government" in the criminal matter. Moreover, to the extent that Salyer really requires Department of Commerce documents, identified in his motion, nothing prevents him from making a FOIA request.*fn4 Also, with appropriate support and pursuant to well established standards, Salyer can subpoena specific documents from the United States Trustee via Fed. R. Crim. P. 17.

Therefore, the undersigned finds that the "government" for discovery purposes is defined as the government has defined it already and as set forth above.

Materiality under Rule 16(a)(1)(E)(i)

Salyer seeks a vast array of information under the rubric of Rule 16(a)(1)(E)(i).

The vast majority of his requests fall under this provision of the Rule.

To the extent that the government has already disclosed a volcano's worth of evidence, helpful or not, the issue of materiality is obviously moot. That is why the undersigned requested the government to specify for each request whether all documents pertinent to that request had already been disclosed to the best of its knowledge, or the defendant had been given access to them. Requests that are moot are identified below in the request-by-request rulings.

United States v. Santiago, 46 F.3d 885, 894 (9th Cir. 1995) sets the paradigm for disclosure of documents or evidence material to the defense:

A defendant must make a threshold showing of materiality, which requires a presentation of "facts which would tend to show that the Government is in possession of information helpful to the defense." United States v. Mandel, 914 F.2d 1215, 1219 (9th Cir.1990). "Neither a general description of the information sought nor conclusory allegations of materiality suffice." Id.

The undersigned has previously opined on what "helpful to the defense" means as the term could be utilized in an under or over inclusive manner. As set forth above, "helpful" is something less than "exculpatory"; if this were not the case, there would be no need to have the discovery rule. On the other hand, "helpful" could be construed to mean nearly everything the government has looked at. Therefore, "helpful" is properly construed as evidence: which is significantly helpful to an understanding of important inculpatory or exculpatory evidence. " 'The materiality requirement typically 'is not a heavy burden,' rather, evidence is material as long as there is a strong indication that ... [the evidence] will 'play an important role in uncovering admissible evidence, aiding witness preparation, corroborating testimony, or assisting impeachment or rebuttal.' " United States v. Jackson, 850 F.Supp. 1481, 1503 (D.Kan.1994) quoting United States v. Lloyd, 992 F.2d 348, 351 (D.C.Cir.1993) (emphasis added).

United States v. Liquid Sugars, 158 F.R.D. 466, 471 (E.D. Cal. 1994). "On the other hand, requests which are designed to generally cast for impeachment material... are not material. Such requests are simply speculative inquiries without basis in fact to believe that the information acquired will be significantly helpful." Id at 472. In determining materiality, a court will view the demonstrated or obvious burden of production on the government in light of the demonstrated need for the evidence, United States v. Jack, 257 F.R.D. 221 (E.D. Cal. 2009) (Drozd, J.), i.e., burden of production may require greater demonstration of specific need.

Santiago and another recent Ninth Circuit case, United States v. Stever, 603 F.3d 747 (9th Cir. 2010), are good examples of the application of the above paradigm and explanation of materiality. In Santiago, a case involving the murder of a prison inmate, the defendant had asked to see the prison files of all inmates to be called as witnesses by the government because evidence of gang affiliations would be introduced by the prosecution. Santiago reasoned that he would need this information for impeachment purposes, i.e., whether any of the witnesses were linked with rival gangs. The Ninth Circuit held:

These assertions, although not implausible, do not satisfy the requirement of specific facts, beyond allegations, relating to materiality. See Mandel, 914 F.2d at 1219. Although the defense did have access to other documents relating to the government witnesses and interviewed several other prison inmates, it did not cite any fact, such as a statement by the defendant or one of the interviewed witnesses, that might link one of the witnesses to a rival gang. Thus, since the defense has only asserted "conclusory allegations" without grounding in fact, Mandel, 914 F.2d at 1219, we cannot find that the information sought was material to the case.

Santiago, 46 F.3d 894-895.

In other words, simply having an educated guess about documents' helpfulness was insufficient.

Stever demonstrates when sought information would be helpful. In this case, defendant had announced a specific defense that the marijuana grown on his large tract of land had been grown by another. He sought specific reports in the possession of the government showing the problem of Mexican gangs using the property of others for their grow operations. The Ninth Circuit found the reports to be manifestly relevant to the defense.

In the present case, other than a general "not guilty," Salyer has announced no specific defense to the charges. For the most part, he simply desires to look through a potentially massive amount of documents in different categories on the chance that something good might turn up for him in that production. For example, Salyer request in No. 61: "All reports or documents detailing any contacts between any other government informant or agent and the government." To permit this catchall request to meet materiality standards would be the equivalent of mandating open file discovery; indeed, the "files" don't even exist for many such requests. Even where Salyer has been more specific in his request, the materiality of the information cannot be ascertained because Salyer keeps his defensive cards close to the vest. In Request No. 55, Salyer seeks, "All reports or documents detailing any contacts between Gregory Wuttke and the government." In his Reply at 30, Salyer simply assumes the importance of this person, and further presumes that anything this person said or did is material. Materiality is meaningless if such a request is satisfactory.

Salyer knows how to frame a request that is materially helpful to the defense. At hearing, counsel discussed why specific IRS documents, form 1099s, prepared by Rahal were necessary, i.e., it was Salyer's contention that Rahal was bribing on behalf of all food companies who used his services to supply food wholesalers/retailers down the chain, e.g., Safeway, Frito-Lay, so that none of these wholesalers/retailers had suffered a loss on account of any alleged illegal bribes/kickbacks required by SK Foods -- the extra cost, call it a commission, was simply an expense paid by everyone. Whether this is a viable defense to the government charges remains to be seen, but the undersigned can understand the connection between the specific documents requested and the asserted defense. Unfortunately, very few of the requests actually made by Salyer have this quality of materiality. The vast majority of requests are simply an "all documents" civil type discovery request.

The undersigned will review materiality request-by-request below. Request-by-Request Analysis

In making his initial motion, Salyer did not make a request-by-request showing of materiality; he only did so in his Reply. In the interim, the undersigned had directed the government to make a request-by-request statement concerning whether the "government" had disclosed all documents pertinent to the request already, whether it had not, or whether it was unsure. In order to better ascertain what was being withheld on account of privilege, the government was also directed to identify a privilege assertion to a specific request if one was appropriate.

The undersigned scanned the government's request-by-request analysis, and used a pdf converter program to make it a Word Perfect document. The government's pleading is therefore repeated here as it included the specific request and the government's response. Simply opining a ruling on each request without setting it forth, would make this order impossible to adequately review. Where appropriate and necessary to the issue of materiality, the undersigned includes Salyer's materiality discussion. Where materiality is obviously present, or where it is obviously not, the undersigned will not include Salyer's discussion. Where an objection is sustained on grounds other than materiality, the discussion will not be included. While this procedure makes the order very lengthy, having all pertinent information in one place will be more efficient if any review is sought of this order.

The request will appear in bold; Salyer's response, when materiality is the dispositive issue, in Courier font, the government's response in Times New Roman font and the court ruling in italics.

1. All statements or alleged admissions made by the defendant to the government.

Government Response:

(1) Yes, with regard to statements made pre-indictment in this investigation. Yes, with regard to statements in DOJ-Antitrust possession that are relevant to the establishment of CTEG. Tax returns authenticated as obtained from the IRS Service Center will be disclosed shortly. Ongoing production of calls from the jail.

(2) No privileged documents withheld.

Court Ruling -- The government has responded adequately to this request.

2. All statements or alleged admissions made by any other alleged co-conspirator the government contends are admissible at trial pursuant to the Federal Rules of Evidence 801.

Government Response:

(1) Unsure. Defendant has all memoranda of pre-indictment interviews conducted in this case. Defendant has all recorded conversations gathered in this case. The government continues to investigate and anticipates discovering more statements.

(2) Prospective witness statements are not discoverable under Rule 16. This is true whether or not the prospective witness ultimately testifies. United States v. Mills, 810 F.2d 907, 910 (9th Cir. 1987).

Court Ruling -- Materiality is evident from the nature of the request. The issue here is whether the government can be compelled to disclose co-conspirator statements as if they were the statements of Salyer himself. There is a bit of symmetry to Salyer's request -- if the co-conspirator statements can be used at trial as an admission by Salyer, why should they not be produced in discovery as a Salyer statement. Although the Ninth Circuit has apparently not directly ruled on the issue, the circuit case law is nevertheless squarely against reading Rule 16(a)(1)(A) in this fashion, and has squarely rejected the lower court cases cited by Salyer. See United States v. Williams, 90 F.3d 490, 513 (D.C. Cir. 1996); United States v. Manthei, 979 F.2d 124, 126 (8th Cir. 1992); United States v. Gaddis, 877 F.2d 605, 610 (7th Cir. 1989), In re United States, 834 F.2d 283, 286 (2nd Cir. 1987); United States v. Roberts, 811 F.2d 257, 258-59 (4th Cir. 1987) (en banc). See also United States v. Cerna, 2009 WL 2998929 (N.D. Cal. 2009).

The request is denied.

3. A complete copy of any prior criminal record relating to any person the government contends is a co-conspirator in connection with this case.

Government Response:

(1) No.

(2) Impeachment information need not be disclosed until witness testifies. United States v. Rinn, 586 F.2d 113, 119 (9th Cir. 1978); United States v. Smith [sic Hopkins,] 2008 WL 4453583 *2 (E.D. Calif.) (Hollows, J). No other criminal histories are discoverable at any time, because they do not impeach any witness. With regard to persons who are not witnesses, defendant has failed to make a factual showing of materiality.

Court Ruling -- The information is clearly material. While the government is correct that impeachment information does not generally need to be produced pre-trial, the fact that Rule 16(a)(1)(D) specifically calls for its production in discovery renders conviction records outside the general rule.

The request is granted.

4. Master list or index of discovery produced to date by the government, including an index of all FBI and IRS typewritten reports and field reports detailing witness statements and similar reports from each agency participating in the investigation, and a list or index of all lab reports received from all agencies participating in the investigation (including the USDA and the FDA).

Government Response:

(1) No.

(2) Rule 16(a)(2); Amlani.

Court Ruling -- In the previous discussion on organization, the court has tasked the government only with a limited organization of materials it has produced. In addition, Salyer has obtained the prosecutor's own index. Other agency indexes are privileged from disclosure. Nothing further is warranted.

5. Master list or index of all of the recorded body microphone or "consent" call conversations, along with the name of the person who initiated the call and the persons recorded, and identification of whether it was sponsored by the government or whether it is the product of the parallel private investigation sponsored by Morning Star.

Government Response:

(1) No.

(2) Rule 16(a)(2); Amlani.

Court Ruling -- Same as #4 above. In addition, the request includes an improper interrogatory.

6. All FBI lA evidence logs, and any evidence logs or inventories as maintained by the IRS, the FDA, the USDA, or the United States Attorneys Office, Anti-Trust division. Government Response:

(1) No.

(2) Rule 16(a)(2); Amlani.

Court Ruling -- Same as #4 above.

7. All handwritten original notes used by the investigating agents, including FBI Agents Paul Artley and Tim Lester, to prepare their investigative and witness interview reports.

Government Response:

(1) No. Notes are preserved. Notes of the late-transcribed interview referred to in defendant's reply brief will be made available for court's in camera inspection.

(2) Internal government document(s). Giglio information need not be disclosed until witness testifies. Compliance with agency guidelines is immaterial. Sought for a "sword" motion. Court Ruling -- Impeachment material need not be turned over at this time unless the district court orders otherwise as a case management tool. To the extent that Salyer desires to use the notes as indicative of some type of agency error, Armstrong precludes discovery. The preservation of rough notes is ordered in a separate order.

8. Recordings of any witness interviews conducted by the government.

Government Response:

(1) No. Only recorded interview was of Anthony Manuel. The government is likely to exercise its discretion to disclose this early.

(2) Prospective witness statements are excluded from Rule 16 and available only pursuant to Jencks at the time of testimony. Giglio information need not be disclosed until witness testifies. Court Ruling -- The government is correct. See Rule 16(a)(2). Request denied.

Requests 9-17 -- Testing Information [Salyer] Materiality Overview:

The indictment alleges that the defendant, and "others known to the Grand Jury," ...., allegedly orchestrated several fraudulent schemes whereby SK Foods induced certain SK Foods' customers to pay for adulterated and misbranded processed tomato products at inflated prices that did not meet customers' contract specifications. The indictment avers that the "purpose" of the enterprise was to"increas[e] SK Foods' profits by fraudulently inducing certain of SK Foods' customers to pay for adulterated and misbranded processed tomato products...." Indictment at ¶ 30(d). The indictment further elaborates that the defendant: (1) "caused the falsification of ... various grading factors and data contained on Certificates of Analysis and other quality control documents ..." so that they "reflected mold count levels in SK Foods' tomato product as being below the applicable Food Defect Level set forth in federal regulations ..."; and, (2) "caused the falsification of ... SK Foods quality control documents so that they reflected Natural Tomato Soluble Solids (NTSS) levels were higher than what the processed tomato product actually contained...." Indictment at 31(d) & 31(e).

During the course of its investigation, the government, acting through the assistance of its informant Anthony Manuel, took sample bags of tomato paste from SK Foods, and FBI Agent Artley sent those samples to the USDA for testing. Opposition at 7:26-28. In the discovery provided to date, Agent Artley has acknowledged that those samples were destroyed, and in fact, via a "302 report" recently supplied in discovery by the government nearly three years after the testing was conducted, Agent Artley attempts to provide a post hoc explanation for the destruction of the actual samples sent to the USDA for testing. Insofar as the government is relying on the results of this testing in support of the charges and as a purported basis for probable cause in connection with search warrants executed in April 2008 and contends that like samples are available for alternative independent testing, the defendant is entitled to the requested documents to: explore and explain the circumstances in which the samples were destroyed, including all related correspondence detailing Agent Artley's request to destroy the samples; chain of custody records to show that the lab reports are inadmissible; the FDA and the USDA's file materials, including documents available to the FDA and the USDA relevant to the standards, testing, and testing procedures employed by those agencies to test the SK Foods samples and to test food products produced by the companies who are alleged to purchased and used the "adulterated" tomato paste and other food ingredients purchased from SK Foods (to show that the government did not comply with their own testing standards); and, any documents or records which show that the alleged adulterated SK Foods products were re-tested, particularly if the customers themselves conduced any such testing. Moreover, to the extend expert testimony is expected, the reports of all examinations and tests are material and discoverable. FRCrP 16(a)(1)(D) & (a)(1)(G).

Government Rebuttal to Defendant's Materiality "Overview" for Requests 9-17: The Defendant makes no factual showing of materiality for Requests 9-17. Rather, he baldly seeks to "explore and explain." (Def. Reply at 19.) The government has complied with Rule 16(a)(1)(F) (reports of examinations and tests).

The Defendant does not explain factually the materiality of how customers' testing of SK Foods product, or government testing of customers' products. Actual reliance is not an element of any offense charged in this case. Also, victim negligence is not a defense to fraud. United States v. Ciccone, 219 F.3d 1078, 1083 (9th Cir. 2000) ("In this circuit 'lilt is immaterial whether only the most gullible would have been deceived' by the defendants' scheme."), quoting Lemmon v. United States, 278 F.2d 369, 373 (9th Cir. 1960). A fraud victim's extreme credulity is similarly irrelevant to guilt. It is immaterial whether only the most gullible would have been deceived." United States v. Hanley, 190 F.3d 1017, 1023 (9th Cir. 1999), quoting Lemon, 278 F.2d at 373.

It is also true that food regulations and testing procedures are available on public government websites. See, e.g., Subject: Preparation of Pineapple Products; Citrus Products; and Fruit Nectars, Purees, and Pastes for the Howard Mold Counting Procedure (Sept. 1984).

The government has no duty to obtain C.F.R. citations and publicly available documents for the defense.

Court Ruling 9-17: The United States has disclosed much of what defendant seeks. To the extent that test results associated with the criminal investigation have not been turned over at this time, they are ordered disclosed. Data sheets underlying the test results, if separate from the results themselves, are ordered to be disclosed. See United States v. Liquid Sugars, supra. All documents reflecting a governmental request or order to destroy the samples used for testing are ordered disclosed. The requests are otherwise denied as not being material. Id.

9. All USDA testing reports, correspondence, electroniccommunications, or documents relating to any requests by the government to test any of SK Foods's food products or samples, including any documents or communications in which the government requested that samples be destroyed.

Government Response:

(1) Unsure. The government will disclose all USDA reports of testing of SK Foods's products undertaken during this investigation. No, as to other documents demanded.

(2) Rule 16(a)(2). Request is over broad in that it purports to seek documents that are unrestricted as to time, subject, or investigation.

Court Ruling -- See general ruling for requests 9-17 above.

10. All FDA testing reports, correspondence, electronic communications, or documents relating to any requests by the government to test any of SK Foods' food products or samples, including any documents or communications in which the government requested that samples be destroyed.

Government Response:

(l) Unsure as of this writing. The government will disclose all FDA reports of testing of SK Foods's products undertaken during this investigation. No, as to other documents demanded.

(2) Rule 16(a)(2). Request is over broad in that it purports to seek a vast universe documents that are unrestricted as to time, subject, or investigation.

Court Ruling -- See general ruling for requests 9-17 above.

11. All documents authorizing or noting the seizure of the SK Foods' sample bags, the logging them in as evidence, the transmittals to the USDA or the FDA, the test reports, the disposition records, the chain of custody records, and all reports relating to that process. Government Response:

(1) With regard to sample bags obtained from Manuel, the government has turned over the 302 indicating receipt from Manuel, chain of custody record, transmittal letter to USDA, and report of testing. For sample bags obtained during search warrant, the search warrant returns have been copied and the chain of custody records are available for inspection. No, as to other documents demanded.

(2) Rule 16(a)(2); Amlani.

Court Ruling -- See general ruling for requests 9-17 above.

12. All SK Foods' sample bags sent for testing to the FDA or the USDA so they may be subject to independent testing.

Government Response:

(1) No. The bags themselves are available for inspection. The contents were destroyed.

(2) No privileged documents withheld.

Court Ruling -- See general ruling for requests 9-17 above. Salyer shall make arrangements to inspect the bags at a mutually agreeable time.

13. All correspondence, documents, e-mails, text messages, communications and faxes exchanged between Agent Artley or any other government agent and the FDA and the USDA.

Government Response:

(1) No.

(2) Rule 16(a)(2) insofar as this request relates to this investigation. Request is over broad in that it purports to seek documents that are unrestricted as to time, subject, or even investigation. Court Ruling -- See general ruling for requests 9-17 above. The government is correct that these internal-to-the-government documents are precluded from disclosure.

14. All documents available to the FDA and the USDA relevant to the standards, testing, and testing procedures employed by those agencies - for food products produced by the companies who used the tomato paste and other food ingredients purchased from SK Foods for the past ten years and the investigative reports relating to any investigation or inquiry concerning those companies, relating to tomato-based products, for the same period, including any relating to or discussing the use of SK Foods ingredients. Government Response:

(1) No. (2) A request for documents about SK Foods's customers is outside the scope of Rule 16 because it is not supported by a factual showing of materiality. The government does not know why this is requested, but notes that actual victim reliance is not an element of any crime charged in this case. Victim negligence is not a defense to any crime charged in this case.

Court Ruling -- This is precisely the type of casting about for impeachment material that is not appropriate for criminal discovery.

15. Any surveys or studies conducted by the FDA or the USDA of the actual testing or manufacturing process of the companies alleged to be "victims" in the indictment. Government Response:

(l) No.

(2) Request is over broad in that it purports to seek a vast oniverse documents that are unrestricted as to time, subject, or investigation. Read literally, the defendant is demanding any FDA and USDA files on companies such as Kraft and Con Agra, regardless of the product. Same materiality failure as in other victim-related requests.

Court Ruling -- The undersigned agrees with the government. See general ruling for requests 9-17 above.

16. The entire file maintained by the FDA regarding the defendant or SK Foods.

Government Response:

(1) No.

(2) Rule 16(a)(2). It cannot be said that a single file containing all things SK Foods exists. Court Ruling -- See general ...

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