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United States v. Lopez

United States District Court, E.D. California

November 13, 2019

UNITED STATED OF AMERICA, Plaintiff,
v.
ENRIQUE LOPEZ, Defendant.

          ORDER DENYING REQUEST FOR DISCOVERY OF PROFFER EVIDENCE ECF NO. 102

          BARBARA A. MCAULIFFE UNITED STATES MAGISTRATE JUDGE.

         Defendant Enrique Lopez (“Defendant”) is charged by superseding indictment with conspiracy to commit armed bank robbery in Count One, attempted armed bank robbery in Count Two, and carrying a firearm during and in relation to a crime of violence in Count Three. (Doc. 77.)

         A. The Discovery Request

         On August 16, 2019, Defendant Lopez filed a motion for discovery, which was sealed by the court because of the reference to a cooperating witness. (Doc. 88.) As relevant to this order, the motion sought:

Notes of investigators and prosecutors, in this district or elsewhere, concerning the debriefing(s) of the cooperating person concerning reasons why any bank robbery may or would not have proceeded at the time of the cooperating person's and co-defendants' arrests in this case included but not limited to:
A. Others were not finished gathering information or with surveillance, and
B. Further action would not have taken place without the cell phone scrambler, which had been left behind, according to a law enforcement report.

         At oral argument on the motion held on September 23, 2019, and upon questioning by the court, Defendant indicated that what he was seeking to discover was the arrangement and proffer made by the cooperator's attorney to the government. The court granted defendant an opportunity to file relevant authority and granted the government an opportunity to respond. Defendant filed his Supplemental Points and Authorities on September 25, 2019. (Doc. 102.) The government filed its Supplemental Opposition on October 28, 2019. (Doc. 103.) The motion was submitted on these pleadings.

         B. Parties' Arguments

         In Defendant's Supplemental Brief, Defendant contends the proffer by the cooperator's attorney is exculpatory evidence which should be produced under Brady. Defendant seeks the information so that Defendant may evaluate the government's recent plea offer agreement:

“The cooperating witness is the only person the government can call to dispute defendant's claim that no attempted bank robbery was taking place at the time of his [defendant's] arrest. In order to assist the defendant in evaluating the government's plea offer, the defense needs the requested discovery now.”

(Doc. 102, Supplemental Brief p.3.) Defendant asks the court to require the government to produce proffers made to the government by the cooperating witness or his counsel leading to the agreement to cooperate, including information about the negotiations. In addition to Brady, Defendant cites United States v. Sudikoff, 36 F.Supp.2d 1196 (C.C. Cal. 1999) for the proposition that such proffers may be produced.

         In its supplemental brief, the government contends that Defendant is not entitled to witness statements that do not contain exculpatory information or information material to preparing his defense. What Defendant is seeking is information about a witness' statement to evaluate the plea offer, not exculpatory information. Such statements are governed by the Jencks Act. Further, Defendant is not entitled to seeking attorney non-exculpatory proffered information. Finally, Defendant is not entitled to impeachment material about potential government witnesses so that Defendant can evaluate the plea offer.

         C. ...


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