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United States v. Murray

United States District Court, D. Massachusetts

May 6, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
MATTHEW MURRAY, Defendant.

          MEMORANDUM AND ORDER REGARDING DEFENDANT'S MOTION FOR DISCOVERY (DKT. NO. 60)

          KATHERINE A. ROBERTSON UNITED STATES MAGISTRATE JUDGE.

         I. Introduction

         Defendant Matthew Murray is charged by indictment with aiding and abetting the distribution and possession with intent to distribute 100 kilograms or more of marijuana in violation of 18 U.S.C. § 2 and 21 U.S.C. § 841(a)(1), aiding and abetting the possession of firearms in furtherance of a drug trafficking crime, in violation of 18 U.S.C. §§ 2, 924(c), and aiding and abetting money laundering, in violation of 18 U.S.C. §§ 2, 1956(a)(1)(B)(1) (Dkt. No. 2). Defendant made discovery requests by an October 18, 2018 letter (Dkt. No. 51). The government replied by letter of November 1, 2018 (Dkt. No. 54). Defendant then moved for discovery of material he alleged that the government had not produced (Dkt. No. 60) and the government responded (Dkt. No. 62). At the hearing on Defendant's motion, the court requested supplemental briefing on whether Defendant could identify legal authority supporting the proposition that the government should be required to compel a cooperating source ("CS") to produce his cellular telephone for a forensic examination by Defendant. Defendant filed a supplemental memorandum which included a motion for the issuance of a subpoena under Fed. R. Crim. P. 17(c) ("Rule 17(c)") ordering the CS to produce his cellular telephone for a forensic examination (Dkt. No. 71). The government opposed Defendant's request for the issuance of a subpoena duces tecum (Dkt. No. 74). After hearing from the parties on April 8, 2019, Defendant's motions for discovery and for the issuance of a Rule 17(c) subpoena to the CS are DENIED for the reasons that follow.

         II. Background

         In connection with the charges against Defendant, a search warrant was executed at Defendant's residence in Pittsfield, Massachusetts by members of a Drug Enforcement Administration ("DEA") task force. To establish probable cause for the search, the affidavit in support of the search warrant relied, in part, on cellular telephone communications between Defendant's cell phone and the personal cell phone of a CS, Jonathan Giedrowicz. The contents of text messages derived from screenshots from the CS's cell phone were included in the search warrant affidavit.

         III. Discussion

         By his discovery motion and supplemental memorandum, Defendant seeks the following: (1) "the entire informant file and all debriefings of Giedrowicz by any federal, state or local law enforcement agency" (2) "all communications between [Giedrowicz] and any investigator or prosecutor assigned to this case;" (3) assurance that the government has produced all text messages between Giedrowicz and Defendant; and (4) an order for the production of a forensic image of Giedrowicz's cell phone including an order "directing the government to preserve, obtain and produce the data and metadata essential for the analysis of text messages and any other communications allegedly between [Giedrowicz] and [D]efendant . . . that the government intends to introduce at trial" (Dkt. No. 51 ¶¶ 3, 5, 12; Dkt. No. 60; Dkt. No. 71 at 1). As an alternative to the government's production of a forensic image of Giedrowicz's cell phone including the requested metadata, Defendant seeks a subpoena issued pursuant to Rule 17(c) "directing the [CS] to produce his cellular telephone for inspection and analysis by a defense forensic expert." (Dkt. No. 71 at 1). Each of Defendant's requests is addressed below. "Before making rulings on the individual requests contained in the [m]otion, some preliminary remarks are necessary to establish the discovery landscape." United States v. Geas, No. 08-CR-30029-MAP, 2009 WL 4430100, at *1 (D. Mass. Nov. 30, 2009).

         A. Legal Standards

         Defendant relies on Brady v. Maryland, 373 U.S. 83 (1963), Giglio v. United States, 405 U.S. 150 (1972), and Fed. R. Crim. P. 16(a)(1)(E) to support his motion (Dkt. No. 60 at 1 nn.1 & 2).

         1. Brady v. Maryland and Giglio v. United States

         "In a line of cases beginning with Brady, the Supreme Court has made clear that the prosecution in a criminal case has an affirmative duty to disclose information in its possession that is favorable to the defendant and material to the question of guilt or punishment." United States v. Tsarnaev, Criminal Action No. 13-10200-GAO, 2013 WL 6196279, at *1 (D. Mass. Nov. 27, 2013) (citing Kyles v. Whitley, 514 U.S. 419, 432-33 (1995)). See also United States v. Prochilo, 629 F.3d 264, 268 (1st Cir. 2011). "Evidence is 'material' for these purposes only if there is a reasonable probability that it could affect the outcome of the trial." Tsarnaev, 2013 WL 6196279, at *1 (quoting United States v. Bagley, 473 U.S. 667, 682 (1985)). This information, otherwise known as "Brady material," "falls into one of two categories - that which tends to be more or less directly exculpatory in that it casts doubt on the defendant's guilt, and that which is indirectly exculpatory in that it tends to impeach the reliability of other prosecution evidence." Id. Defendant's right to the disclosure of favorable evidence, however, does not "create a broad, constitutionally required right of discovery." Bagley, 473 U.S. at 675 n.7. See also United States v. Agurs, 427 U.S. 97, 111 (1976) (the prosecutor does not have a "constitutional duty routinely to deliver his entire file to defense counsel").

         "Giglio material" is related to Brady material. Giglio requires the government to disclose evidence affecting the credibility of a witness, such as promises, rewards, or inducements to testify, even if the evidence is not inherently exculpatory. See Giglio, 405 U.S. at 153-54; Napue v. Illinois, 360 U.S. 264, 269 (1959); United States v. Bulger, 816 F.3d 137, 153 (1st Cir. 2016).

         2. Fed. R. Crim. P. 16(a)(1)(E)

         Federal Rule of Criminal Procedure 16(a) outlines the government's basic disclosure obligations. "[U]nlike the Government's Brady obligation to disclose exculpatory evidence . . . Rule 16 requires the disclosure of inculpatory and exculpatory evidence alike." United States v. Poulin, 592 F.Supp.2d 137, 143 (D. Me. 2008) (citation omitted) (citing United States v. Marshall, 132 F.3d 63, 68 (D.C. Cir. 1998)). Federal Rule of Criminal Procedure 16(a)(1)(E) states, in relevant part:

Upon a defendant's request, the government must permit the defendant to inspect and to copy or photograph books, papers, documents, data, photographs, tangible objects, buildings or places, or copies or portions of any of these items, if the item is within the government's possession, custody, or control and: (i) the item is material to preparing the ...

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