United States District Court, D. Massachusetts
MEMORANDUM AND ORDER REGARDING DEFENDANT'S MOTION
FOR DISCOVERY (DKT. NO. 60)
KATHERINE A. ROBERTSON UNITED STATES MAGISTRATE JUDGE.
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
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
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,
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).
Brady v. Maryland and Giglio v. United
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").
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.
R. Crim. P. 16(a)(1)(E)
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
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 ...