United States District Court, N.D. California
TRIAL ORDER NO. 10 RE: BRADY/GIGLIO VIOLATIONS;
DENYING MOTION TO STRIKE OR FOR CURATIVE INSTRUCTION RE: DKT.
NOS. 1294, 1323
GONZALEZ ROGERS UNITED STATES DISTRICT COURT JUDGE
19, 2016, defendant A. Cervantes filed a motion to strike the
testimony of witness Bismark Ocampo based on alleged
violations of the Jencks Act, 18 U.S.C. section 3500. (Dkt.
No. 1294.) The Court denied defendant A. Cervantes’
motion to strike Mr. Ocampo’s testimony from the
record. (Dkt. No. 1318.) As part of that Order, the Court
ordered the government to disclose all relevant BOP phone
calls, which defendant A. Cervantes claims should have been
disclosed. (Id.) After reviewing said phone calls,
defendant A. Cervantes raised on the record that the failure
to disclose the phone calls prior to Mr. Ocampo’s
testimony amounted to violations of the government's
obligations under Brady v. Maryland, 373 U.S. 83
(1963) (“Brady”) and Giglio v.
United States, 405 U.S. 150 (1972)
(“Giglio”). The government offered to
make Mr. Ocampo available again for further cross-examination
which all the defendants declined.
detailed in the record, most of the BOP telephone calls were
produced within a couple of days. A minor portion was
transcribed from Spanish to English, which took longer to
disclose. Upon completion of the production, and after the
close of evidence, defendant A. Cervantes maintained his
claim of Brady/Giglio violations on the basis that
the actual calls had not been produced prior to or at the
time of Mr. Ocampo’s examination. Despite a lengthy
hearing and the passage of time, defendant A. Cervantes could
not articulate any specific prejudice or any substantive
difference between the disclosures made and the actual calls
government is required to “provide the defense with
material exculpatory evidence within the government’s
possession, including evidence that could have been used to
impeach the [witness’s] credibility.” United
States v. Bernal-Obeso, 989 F.2d 331, 333 (9th Cir.
1993) (citing Brady and Giglio). Evidence
that is cumulative is not material for Brady/Giglio
purposes. United States v. Stifler, 851 F.2d 1197,
1202 (9th Cir. 1988). “When a witness’s
credibility has already been substantially called into
question in the same respects by other evidence, additional
impeachment evidence will generally be immaterial and will
not provide the basis for a Brady claim.”
Tankleff v. Senkowski, 135 F.3d 235, 251 (2d Cir.
1998) (citing United States v. Zagari, 111 F.3d 307,
320-21 (2d Cir. 2011)).
Court finds the decision in United States v. Owen,
No. CR-87-856, C-96-524, 1996 WL 479017 (N.D. Cal. Aug. 1,
1996) to be instructive. On a motion pursuant to 28 U.S.C.
§ 2255 to vacate, set aside, or correct his sentence,
the defendant argued that the government withheld certain
memoranda which were material to impeaching three of the
government’s witnesses. Id. at *5. The court
found that “[a]lthough the documents cited by [the]
defendant may have been useful to the defense at trial, taken
individually or as a whole they are not likely to have
changed the verdict.” Id. The documents
identified suggested that the witnesses “engaged in
dishonesty, drug use[, ] and other criminal acts.”
Id. However, the court found that the witnesses had
admitted as much at trial and that the defense appeared to
have had “much of the information contained in”
the requested documents at trial. Id. Thus, the
court found that additional “documentary evidence
supporting these admissions is not likely to have changed the
outcome of the trial, ” and therefore found that such
documents were “not material for purposes of
Brady.” Id. (finding that any failure
to “release or reveal these documents did not violate
due process under Brady”).
decision in Cox v. Kerestes, No. 09-cv-4825, 2011 WL
10563242 (E.D. Pa. July 22, 2011), report and
recommendation adopted, 2013 WL 1294110 (E.D. Pa. Mar.
29, 2013) is also analogous to the case at hand. In
Cox, the defendants claimed that the government
failed to disclose a pardon letter relevant to one of the
government’s witnesses. Id. at *12. The court
found, however, that defense counsel was aware of the
existence of the pardon letter and impeached the
witness’s credibility with the existence of the pardon
letter on cross examination and in his closing statement.
Id. The court there thus found that the defendant
did not meet Bradys cause and prejudice test.
the government produced disclosures in advance of trial, much
less, at the time of the examination, on the subjects and the
substance of the phone calls, all the defendants were able to
cross-examine on such subjects, and were thus not prejudiced
by the absence of the phone calls themselves. Defendant A.
Cervantes has not made a showing to the contrary.
Accordingly, the Court Finds that defendant
A. Cervantes has not sufficiently shown that the government
has violated any of its Brady/Giglio obligations
with respect to Mr. Ocampo’s testimony.
defendant A. Cervantes has requested the Court to strike the
testimony of witness Mario Ochoa Gonzalez on the grounds that
the government elicited misleading testimony from Mr. Ochoa
Gonzalez regarding his October 2015 debriefings with the
Northern District of California U.S. Attorney's Office,
or alternatively, for a curative instruction that the
government elicited misleading information. (Dkt. No. 1323.)
The examination, however, when viewed in its totality does
not support the allegations made. The motions are, therefore,
Order terminates Dkt. No. 1323.
 On July 11, 2016, defendant A.
Cervantes filed a document entitled “Response to
Court’s Questions Regarding Prejudice from Andrew
Cervantes’ Asserted Jencks Act Violation; Notice of
Lodging Exhibits to Supplement the Record.” (Dkt. No.
1392.) This document was filed late, without leave of the
Court, after arguments on the issue were completed, and on
the eve of closing arguments. It is thereby
Stricken and not ...