The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge
Defendants in the above referenced case were indicted on various controlled substances charges in May of 2010 for activities involving cocaine and methamphetamine. The federal case evolved from a state murder investigation. At least one search warrant was issued by a state judge in connection with that murder investigation. An important component of the state search warrant was an affidavit executed by Stanislaus County District Attorney investigator Kirk Bunch. During the course of execution of this warrant, controlled substances underlying the present federal charges were discovered. At some point, the United States Attorney determined to bring the controlled substances charges in federal court.
Defendant Khan, joined by his co-defendant, brought a motion to compel discovery (Docket #36) and a motion to compel the government (pursuant to United States v. Henthorn, 931 F.2d 29 (9th Cir. 1991)) to review the personnel file of Investigator Bunch (Docket # 39). At hearing, the motion to compel discovery was withdrawn without prejudice. However, Khan desired to proceed on the Henthorn motion.*fn1
Khan desires the Henthorn review because he plans to file in the
future a motion to suppress based on a Franks violation.*fn2
Khan relates that the "defense is informed and believe[s]
that Bunch has a history of engaging in misconduct, and has a
reputation in the legal community in Modesto as being dishonest and
untrustworthy." Motion, Points and Authorities, at 2. The defense
assumes that the government will have to call Bunch at any future
evidentiary hearing regarding the Franks motion; thus, it is entitled
to have the government presently conduct the required Henthorn
Two reasons require the denial of Khan's Henthorn motion: (1) at least under the present record, under Ninth Circuit precedent, Investigator Bunch is not a person whose files are subject to Henthorn; (2) as no evidentiary hearing for a Franks motion has been ordered, Bunch's anticipated testimony at such a speculative hearing does not trigger any present Henthorn review duties on the part of the government.
A. On the Present Record, The United States Has No Duty to Conduct a Henthorn Review of Investigator Bunch's Personnel Record Aside from ipse dixit, Khan produces nothing to support the conclusion that Investigator Bunch, a state law enforcement official, is the "case agent" for the government's controlled substance federal case. Indeed, all of the facts at present show the contrary. The connection of Detective Bunch to this case, where the investigative agency for the federal case is the Federal Bureau of Investigation, and specifically, FBI Agent Spiro Stamos (see the Complaint in this case), is historical only in the sense that the Bunch affidavit regarding the murder investigation ultimately led to the state warrant which then led to the discovery of controlled substance evidence which then was adopted as a criminal controlled substances case by the United States Attorney. Khan asserts only that Bunch is a member of the Central Valley Gang Impact Force, presumably staffed also by federal law enforcement personnel, and that "[t]he Ceres Police Department requested [Bunch's] participation in the investigation of a homicide, which occurred on November 22, 2009." Khan Memorandum of Points and Authorities at 2. "Bunch participated extensively in that investigation, and wrote the affidavit in support of probable cause for the search warrant, dated December 2, 2009, which led to the search, seizure and arrests in the pending case before this Court." Id. However, nothing in Khan's papers, or the Complaint in this case, indicates that the purpose of the state warrant was other than to investigate the murder in question -- most certainly a state law violation. Bunch himself reiterates in the state warrant that it is sought "in connection with a violation of Section 187 (a) of the California Penal Code." Bunch affidavit attached to Declaration of Counsel at 3. While the murder may have had a relation to gangs and drugs, certainly not an infrequent situation, the state warrant was not made for the purpose of a drug investigation, either state or federal.
The merits of a possible Franks motion involving a state official's actions before a state judge are not at issue here. What is at issue, assuming that such a motion may be brought, is the right of the defense to request a Henthorn review of a state official's personnel file. Under our system of federalism, the criminal systems of the states and the federal government are separate for the most part; a federal court's jurisdiction ordering state officials to produce records in a federal criminal action is suspect.
Finally, the government argues that the district court exceeded its authority by requiring review of personnel files of state law enforcement witnesses. We agree. "The prosecution is under no obligation to turn over materials not under its control." United States v. Aichele, 941 F.2d 761, 764 (9th Cir.1991).
United States v. Dominguez-Villa, 954 F.2d 562, 566 (9th Cir. 1992).
The fact that state law enforcement personnel were involved in the underlying federal criminal investigation, here only indirectly, does not make their personnel files "under the control of," or "in the possession of" the federal prosecutor. That is especially true where the state warrant which unearthed evidence of federal law violation was not the purpose for which the state warrant was issued or sought by the state official.
Khan relies heavily on United States v. Cerna, 633 F. Supp. 2d 1053 (N.D. Cal. 2009).
Despite the separate sovereignty concept, two alternative avenues can lead to a Brady duty in the federal-state context. The first is when the federal prosecutor uses a state or local officer as a "lead investigating agent." When this occurs, the Ninth Circuit has held that Brady requires turnover of the defense-favorable records in the possession of the agent. In United States v. Price, 566 F.3d 900 ...