United States District Court, N.D. California
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT'S MOTION TO DISCLOSE ANY AND ALL RECORDS IN CONNECTION WITH THE CRIMINAL INVESTIGATION AND PROSECUTION OF FORMER REVENUE OFFICER WILLIAM WILCOX Re: ECF No. 60
JON S. TIGAR, District Judge.
Before the Court is Defendant Muzaffar Hussain's Motion for Government to Disclose Any and All Records in Connection with the Criminal Investigation and Prosecution of Former Revenue Officer William Wilcox ("Motion"). ECF No. 60. For the reasons set forth below, this Court hereby will grant the motion in part and deny it in part.
Defendant is charged in this case with tax evasion, filing a false tax return, willful failure to truthfully account and pay over taxes, and structuring monetary transactions so as to avoid bank reporting requirements. ECF No. 1. Recently, Defendant learned that the primary revenue officer assigned to investigate Defendant's case and collect tax liabilities, William Wilcox ("Wilcox"), was investigated and prosecuted for a criminal offense sometime before or during the criminal investigation in Defendant's case. ECF No. 60 at 1. Wilcox ultimately pled guilty to a misdemeanor of violating 18 U.S.C. section 1905-disclosure of confidential information. Id . Wilcox was sentenced to probation and was dismissed from his job with the IRS. See ECF No. 61 at 1 (citing to United States v. Willie Wilcox, CR-09-00789-WDB).
Defendant filed the present motion, requesting that this Court order the Government to produce documents related to Wilcox's case, including the IRS investigation report, two compact discs of material gathered during the investigation, and grand jury materials from the investigation. ECF No. 60 at 3. Defendant argues that this information must be produced pursuant to Rule 16 of the Federal Rules of Criminal Procedure, and the rules set forth in Brady v. Maryland, 373 U.S. 83 (1963) (exculpatory material) and United States v. Henthorn, 931 F.2d 29 (9th Cir. 1991) (law enforcement personnel information). Id. at 2. The Government counters that the evidence requested by Defendant is not "material" under Rule 16 or Brady, and that Henthorn does not apply because the Government does not intend to call Wilcox at trial and because the IRS investigation report is not a part of Wilcox's personnel file. The Government further contends that the investigation report is protected by the work product doctrine, and that Defendant has failed to show the particularized need for grand jury materials that would justify disclosure. ECF No. 61.
II. MOTION TO DISCLOSE
A. IRS Investigation Report
Defendant has requested that the Government turn over materials related to the IRS's investigation of Wilcox. ECF No. 60 at 2. Specifically, Defendant has identified one report "approximately 1.25 inches thick." Id. at 3.
1. Legal Standard
Under Rule 16, the government must disclose, upon a defendant's request, all "documents... if the item is within the government's possession, custody, or control and... the item is material to preparing the defense." Fed. R. Crim. P. 16(a)(1)(E). "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) (citations omitted). "Materiality is a low threshold.... Information is material even if it simply causes a defendant to completely abandon' a planned defense and take an entirely different path.'" United States v. Hernandez-Meza, 720 F.3d 760, 768 (9th Cir. 2013) (citations omitted).
"Under Brady v. Maryland, 373 U.S. 83, (1963), a defendant [also] has a right to the production of exculpatory evidence in the possession of the government." United States v. Jennings, 960 F.2d 1488, 1490 (9th Cir. 1992). That right "requires the government to turn over any information about its witnesses that could cast doubt upon their credibility." Id. at 1490. Pursuant to its obligations under Brady, the government is obligated "to inspect for material information the personnel records of federal law enforcement officers who will testify at trial." Santiago, 46 F.3d at 895; see also Henthorn v. United States, 931 F.2d 29, 31 (9th Cir. 1991). Once a defendant makes demand for production, Brady imposes an affirmative obligation on the government to examine the personnel files of testifying government agents from any executive branch agency. Jennings, 960 F.2d at 1490-91. If the government uncovers documents that "contain information that is or may be material to the defendant's case, " the documents must be produced. Henthorn, 931 F.2d at 31. If the government is uncertain as to the materiality of the documents, the documents may be submitted to the court for in camera review. Id.
The Government argues that Henthorn does not apply to the IRS investigation report on Wilcox for two reasons. First, the Government has not decided to actually call Wilcox as a witness at trial, and the IRS investigation report is not part of Wilcox's personnel file. See ECF No. 61 at 10. The Government also argues it is not required to disclose the investigation report because it is protected as work product under Rule 16 of the Federal Rules of Criminal Procedure. Id . 8-9.
The Court rejects the Government's first argument. At the hearing on the motion, the Government stated that it could foresee calling Wilcox only in very limited circumstances, but could not entirely rule out the possibility. This is a far cry from determining that Wilcox will not be a witness. The Court must therefore proceed on ...