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United States v. Larez

United States District Court, Ninth Circuit

December 3, 2013

UNITED STATES OF AMERICA, Plaintiff,
v.
ALBERTO LAREZ, a/k/a Bird, Defendant.

ORDER DENYING DEFENDANT'S MOTION FOR DISCOVERY Re: Dkt. No. 300

NATHANAEL M. COUSINS, Magistrate Judge.

In this case charging multiple counts of racketeering and conspiracy against alleged leaders, members, and associates of the Nuestra Familia gang, defendant Alberto Larez moves to compel the government to produce jail records for potential government witnesses against him. Specifically, Larez requests from two county jails all phone records, letters, movement sheets, notes, grievances, sick call records, and sheriff's interviews relating to five incarcerated witnesses he asserts are planning to testify against him. The time period sought is the years 2012 and 2013.

The facilities identified by Larez are "Glenn Dyer Facility" and the Santa Clara County Department of Corrections.[1]

The primary question presented under Federal Rule of Criminal Procedure 16 is whether these records are material to preparing Larez's defense. The Court reviewed the pleadings submitted by both parties and held a hearing, with Larez present and in custody, on November 20, 2013. The Court finds that Larez's assertions do not satisfy the requirement of specific facts, beyond allegations, establishing materiality. Accordingly, the Court denies the motion for discovery.

BACKGROUND

On January 8, 2013, a federal grand jury returned a Superseding Indictment against eleven defendants charging a total of twenty-seven counts. The Superseding Indictment stems from the alleged affairs of a racketeering enterprise known as Nuestra Familia, which is said to operate inside and outside of prison walls. Count 1 charges all eleven defendants with racketeering conspiracy, in violation of 18 U.S.C. § 1962(d).

The remaining counts allege a pattern of racketeering consisting of various state and federal offenses, including murder, robbery, narcotics trafficking, extortion affecting interstate commerce, witness tampering and obstruction of justice, and conspiracy to commit the same, including assault with a dangerous weapon. Among these, Count 2 alleges a violation of 18 U.S.C. § 1959, commonly known as Violent Crimes In Aid of Racketeering or "VICAR."

Alberto Larez, a/k/a Bird, is charged in Counts 1 (racketeering conspiracy), 2 (conspiracy to commit murder in aid of racketeering), 3 (conspiracy to commit assault with a dangerous weapon in aid of racketeering), 4 (use/possession of a firearm in furtherance of crime of violence), 22 (conspiracy to obstruct justice), 23 (conspiracy to obstruct justice), and 24 (concealment of object to obstruct investigation) of the Superseding Indictment. He has entered a not guilty plea to the charges.

Larez is also one of forty-eight defendants charged by the Santa Clara County Grand Jury in a May 31, 2013, indictment alleging violations of state law.

District Court Judge Yvonne Gonzalez Rogers referred all discovery disputes in this case to the undersigned magistrate judge on February 27, 2013. Dkt. No. 102.

LEGAL STANDARD

Federal Rule of Criminal Procedure 16 grants criminal defendants a right to discovery. Upon the defendant's request, the government must disclose all "documents... within the government's possession, custody, or control... [that are] material to preparing the defense[.]" Fed. R. Crim. P. 16(a)(1)(E)(I). "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. Santiago, 46 F.3d 885, 894 (9th Cir. 1995) (quoting United States v. Mandel, 914 F.2d 1215, 1219 (9th Cir. 1990)). But "[n]either a general description of the information sought nor conclusory allegations of materiality suffice." Mandel, 914 F.2d at 1219.

The Santiago case illustrates the application of Rule 16. That was 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 ...

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