Court filing
Motion to Compel Production Pursuant to Brady v. Maryland — United States v. Adrienne Ponzo (D.N.J.)
Filed December 2, 2024 in U.S. v. Adrienne Ponzo; one of 14 filings from this case.
No. 1:24-cr-00267-KMW · Doc. 50 · 2024-12-02 · Docket on CourtListener
Full text
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UNITED STATES DISTICT COURT
FOR THE DISTRICT OF NEW JERSEY
UNITED STATES OF AMERICA, :
: Crim. No. 24-267 (KMW)
Plaintiff, :
vs. :
ADRIENNE PONZO, et al. : BRADY MOTION
:
Defendant. :
MOTION TO COMPEL PRODUCTION PURSUANT TO BRADY V.
MARYLAND, 373 U.S. 83 (1963)
Defendant Adrienne Ponzo incorporates the Statement of Facts in her Pre
Trial Omnibus Motions as if fully stated herein and hereby objects to the overly
burdensome way the Government turned over discovery in this matter. Defendant
Ponzo, by and through his undersigned counsel, and pursuant to Federal Rule of
Criminal Procedure 12(b)(2) and Local Rule of Criminal Procedure 12.1, hereby
submits this Memorandum of Law in Support of Motion to Compel Production
Pursuant to Brady v. Maryland, 373 U.S. 83 (1963), and its progeny. Ms. Ponzo
respectfully requests that the Court order the Government to comply with its
obligations under Brady by immediately conducting a review of: (1) all testimony
of witnesses called before the Grand Jury that investigated this matter (the “Grand
Jury Transcripts”); (2) all draft or final memoranda and any related rough notes of
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any interviews conducted by individuals involved in the investigation of this case
(collectively, “witness statements”); and (3) such other information, identified
infra, that the United States Department of Justice (“USDOJ”) has recommended
Government prosecutors review to comply with their Brady obligations. Ms. Ponzo
further requests that the Court order the Government to certify, in advance of trial,
that it conducted the required review and produced all materials required to be
produced under Brady to the Defendants.
I. ALTHOUGH THE FEDERAL COURTS HAVE PERMITTED THE
PROSECUTION TO UTILIZE AN “OPEN FILE” TO FULFILL ITS
BRADY OBLIGATION, THE USE OF AN “OPEN FILE” IS NEITHER
NECESSARY NOR SUFFICIENT, COMPELLING THE PROSECUTION
TO DO MORE THAN ALLOW SIMPLE ACCESS TO ITS FILES.
The Federal Courts have made clear that an “open file” policy is neither
constitutionally required, nor is it automatically sufficient, to satisfy the
Prosecution’s constitutional obligations:
While an “open file” policy may suffice to discharge the prosecution's
Brady obligations in a particular case, it often will not be dispositive
of the issue. It is not difficult to envision circumstances where the
prosecution possesses, either actually or constructively, Brady
information that for some reason is not in the “file,” such as material
in a police officer's file (but not in the prosecutor's file) or material
learned orally and not memorialized in writing. No one could
reasonably argue that under those circumstances, assuming the
evidence was exculpatory, the prosecution's Brady obligations would
be satisfied by its “open file” policy. To adopt such a holding would
permit the prosecution to discharge its obligations under Brady by
talismanically invoking the words “open file policy,” and thus
circumvent the purpose behind Brady.
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Smith v. Secretary of New Mexico DOC, 50 F.3d 801, 828 (10th Cir. 1995).
Various Federal Courts have further made clear that providing access to an
“open file” is constitutionally insufficient when the file itself is prohibitively large
or otherwise inaccessible. The District of Columbia Circuit, for example, maintains
that “open-file discovery does not relieve the government of its Brady obligations.”
United States v. Hsia, 24 F.Supp.2d 14, 29 (D.D.C 1998). The Government may
not satisfy its Brady obligations merely “by providing [defendant] with access to
600,000 documents and then claiming that [defendant] should have been able to
find the exculpatory information in the haystack.” Id.; United States v. Saffarinia,
424 F. Supp. 3d 46, 85 (D.D.C. 2020). The issue, therefore, transcends simple
“access,” as “the outcomes of these cases seem to turn on what the government
does in addition to allowing access to a voluminous open file.” United States v.
Skilling, 554 F.3d 529, 577 (5th Cir. 2009).
The use of an “open file,” as used in the present case, thereby requires a fact
dependent inquiry in order to determine whether the Government has fulfilled its
Brady obligation. Although non-binding and unreported, the North Carolina
Eastern District Court has provided an apt summary of the overarching analysis:
… there are no clear measures of when a large document production
fails to fulfill the Government's Brady obligations to disclose
exculpatory material in time for its effective use at trial. Decisions
appear to be fact-bound and turn on the actions taken by the
Government to facilitate the defendant's review of the production,
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such as whether the production is searchable and whether the
Government has provided detailed indices, lists of key documents, a
list of the evidence the Government expects to present at trial, and any
other assistance to the defendant in navigating the production.
United States v. Contech Engineered Sols. LLC, No. 5:20-CR-481-FL-2, 2021
U.S. Dist. LEXIS 35069, at *11 (E.D.N.C. Feb. 18, 2021). On a “more
fundamental” level, however, the Federal Courts have noted “that ‘the prosecutor's
role transcends that of an adversary: he [or she] is the representative not of an
ordinary party to a controversy, but of a sovereignty.... whose interest ... in a
criminal prosecution is not that it shall win a case, but that justice shall be done.’”
Hsia, 24 F.Supp.2d at 30 (quoting United States v. Bagley, 473 U.S. 667, 675 n. 6
(1985)); Berger v. United States, 295 U.S. 78, 88 (1935).
A. Mass “Document Dumps” Whereby the Information Provided Is
Irrelevant or Superfluous Have Always Been Deemed Insufficient to
Satisfy the Government’s Brady Obligation.
When a criminal defendant alleges that the Government has engaged in an
impermissible “document dump,” the volume of the information provided alone is
not dispositive. The Federal jurisprudence centers upon the functionality of the
production, rather than volume alone, as will be analyzed in greater detail below.
Nonetheless, our Federal Courts have consistently indicated that bad faith in
connection with that discovery production will result in a finding that the
Prosecution has not fulfilled its Brady obligation. To illustrate, the Third Circuit
has ruled that the Government may not hide exculpatory material by “mislead[ing]
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the defense into believing the evidence will not be favorable to the defendant."
United States v. Pelullo, 399 F.3d 197, 213 (3d Cir. 2005). In addition, courts
within our Circuit have indicated that a Prosecutor abdicates his duty when “a
significant portion of the materials turned over as discovery bear no relevance” to
the charges against the Defendant. United States v. McGill, No. 12-112-01, slip op.
at 29 (E.D. Pa. Jan. 5, 2016).
Courts within the Fifth Circuit and the Sixth Circuit, in turn, have been
“quick to point out that the prosecution's mere production of an open file consisting
of millions of pages does not necessarily always meet its Brady obligations.”
United States v. Gross, 424 F. Supp. 3d 800, 804 (C.D. Cal. 2019). Both have
similarly dictated the circumstances where a voluminous file will be deemed an
impermissible “document dump:”
We do not hold that the use of a voluminous open file can never
violate Brady. For instance, evidence that the government “padded”
an open file with pointless or superfluous information to frustrate a
defendant's review of the file might raise serious Brady issues.
Creating a voluminous file that is unduly onerous to access might
raise similar concerns. And it should go without saying that the
government may not hide Brady material of which it is actually aware
in a huge open file in the hope that the defendant will never find it.
Skilling, 554 F.3d at 577 (emphasis added); United States v. Warshak, 631 F.3d
266, 297-98 (6th Cir. 2010)(Government failed to meet its obligations under Brady
if it “larded its production with entirely irrelevant documents;” “made access to the
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documents unduly onerous;” or “deliberately concealed any exculpatory evidence
in the information it turned over to the defense.”)
In the present case, the Government’s production equates to an
impermissible “document dump” as it is currently nothing more than a
“voluminous file that is unduly onerous to access” using terminology employed by
Skilling and Warshak. To assist with the analysis and preparation of the data,
Defendant Ponzo has retained Cornerstone Discovery (“Cornerstone”), who has
authored a report indicating that the access has been “unduly onerous” based on the
multiple formats employed:
Upon initial review, we found that data from multiple devices
was generated in different formats. We needed to spend time to
examine this more to account for any duplication. On top of this we
received standard files, along with a Relativity export in single page
tiff format that also needed to be quality checked, processed and
loaded to our review platform for easy review.
Cornerstone Discovery received data from multiple devices in
various formats …
In addition to the duplication in different formats, we found that
there was a large zip file split into 95 parts totaling 2.08 TB. The
problem with how this was provided is that the splits of the zip were
dispersed across several folders. This caused errors when trying to
analyze the contents of the split zip. The 95 parts were saved in
different locations on the provided drives. When provided this way
the split zip did not open properly. The 2.08 TB of data had to be
copied locally into one folder for the split zip to open properly. This
added additional time to copy, and quality check the contents.
(See Cornerstone Report, attached as Exhibit “A” pp 1-2).
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Cornerstone’s initial review further reveals that the production is also laden
with “pointless or superfluous information” again using terminology employed by
Skilling and Warshak, as the production contains unnecessary duplicates:
Cornerstone Discovery also received over 3.41 TB of encrypted
archive files, that our team examined and determined to be duplicates
of provided data in zip format. Our team needed to take time to
confirm that this was duplicative to avoid increasing the amount of
time needed to review this data.
In total Cornerstone received just over 10 terabytes of data.
After spending over a month of processing, deduplication, quality
checking data, and loading data for a timely review, we have a review
platform with under 3 TB. The data that was sent needed sufficient
time to properly handle and get ready for review. The data had
duplication, without any documentation listing the reasoning for this
duplication, causing an increase in time needed to locate any specific
document or category of documents.
(Exhibit A, p. 2). Although Cornerstone has focused upon the time and effort
necessary in light of the duplication, the fact that the Government produced such a
large volume of duplicates shows that the Government produced unnecessary
documents to make the Defendant’s analysis more difficult, which is the precise
opposite of what is required to fulfill the Prosecution’s Brady obligations.
In light of this voluminous production, and its attendant difficulties in both
analysis of the data for actual use by the Defendants and the need to identify and
eliminate duplicative materials, this Court’s ultimate determination in terms of a
remedy should depend on what additional assistance the Government provided in
order to make the data meaningfully accessible. Unfortunately, the answer is none.
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B. Federal Jurisprudence Has Focused Upon the Manner Within Which
the Prosecution has Made the Open File Accessible and Meaningfully
Discoverable of Potentially Exculpatory Material.
As indicated, supra, one of the leading cases that permits the Prosecution to
meet its burden by using an open-file policy states that the sufficiency of the
production depends upon “what the government does in addition to allowing
access to a voluminous open file.” United States v. Skilling, 554 F.3d 529, 577 (5th
Cir. 2009). The Fifth Circuit focused upon “the additional steps the government
took beyond merely providing [an] open file,” including the fact that 1) the open
file was electronic and searchable; 2) the government produced a set of “hot
documents” that it thought were important to its case or were potentially relevant
to the defense; 3) the government provided indices to these and other documents
and 4) the government also provided defendant with access to various databases
concerning prior relevant litigation. Id at 577
The crux of the analysis centers upon whether the Prosecution merely
provided the Defendants with simple access (which is insufficient) or whether it
provided additional safeguards or information. The Government may “not comply
with the requirement of Brady by merely including all known Brady material
within the four million plus pages of discovery.” Compliance depends upon the
“additional steps taken by the Government” to make the production usable and
meaningfully accessible. United States v. Blankenship, No. 5:14-cr-00244, at *16
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(S.D. W. Va. June 12, 2015); United States v. Contech Engineered Sols. LLC, No.
5:20-CR-481-FL-2 at *5-6 (E.D.N.C. Feb. 18, 2021)(“Other courts have found that
in large document production cases, the Government's manner of production was
sufficient to fulfill its Brady obligations when the Government took certain steps to
assist the defendant in navigating the large file.”)
Courts within the Third Circuit have echoed the notion that the Government
may use an open file to satisfy its Brady obligation, provided that the production
provides the defendants with meaningful access to the discovery. In United States
v. McGill, No. 12-112-01 (E.D. Pa. Jan. 5, 2016), for example, the Court found
dispositive the fact that “although the discovery materials are voluminous, the
Government has provided several tools to the defense to assist with the review of
these materials.” These “tools” included providing 1) the discovery “in a form that
could easily be loaded into and searched through an electronic database;” 2) “a
discovery log, the Title III log, and a list of the consensual recordings;” and 3)
access to the “case agents … to assist during the defense's review.” United States
v. McGill, No. 12-112-01, slip op at *28
After setting forth the holdings in Skilling and Hsia, the Pennsylvania
Western District Court similarly found crucial the fact that “the Government took
pains to organize its electronic discovery into distinct folders, in a format that
allows the discovery to be downloaded and electronically searched.” United States
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v. Hertel & Brown Physical & Aquatic Therapy, No. 1:21-cr-39, 2024 U.S. Dist.
LEXIS 98239, at *50 (W.D. Pa. June 3, 2024). The District of New Jersey also
found no obligation on the part of the “Government to identify the Brady material
within the already produced materials,” where it (1) "organized the productions in
individual, separate folders and with an index that identified the specific source of
the particular records;" (2) identified records using the Bates-stamp system; (3)
"provided the defense with records in the same format in which the Government
received them from third parties;" and (4) "provided, whenever possible, electronic
records in a searchable format, such as PDFs, or in files that are loadable into a
discovery platform." United States v. Ellis, No. 2:19-cr-693-BRM-1, 2020 U.S.
Dist. LEXIS 122287, at *4 (D.N.J. July 13, 2020)
In other words, the characteristics of the “open file”, and whether the
defendants actually (not theoretically) enjoy meaningful access to same world of
information as the Prosecution, inform the analysis. In the present case, the
Cornerstone report evidences that the Government sought to frustrate the
Defendants’ access and failed to take any of the steps identified in the cases above:
If there are additional documents that can point to why specific devices
were produced, and the data from those devices that are of key
importance, that could help with the review as well. As it stands, the
data provided no assistance to the end user. Indices would be useful or
guides to what was seen as relevant when the data was produced.
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(Exhibit A, p. 2). The absence of any assistance by the Government to navigate the
duplicative and inaccessible document production compels a specific remedy – the
Government should now specifically identify any Brady material.
C. In the Absence of these Additional Steps and Safeguards, the Court
Should Compel the Government to Identify the Brady Items.
In the wake of Skilling, certain Federal Courts have deemed it “appropriate
to require the government to identify the Brady material in the discovery that has
been produced." United States v. Saffarinia, 424 F. Supp. 3d 46, 85 (D.D.C. 2020)
(quoting United States v. Cutting, No. 14-CR-00139-SI-1, 2017 U.S. Dist. LEXIS
5006, 2017 WL 132403, at *9 (N.D. Cal. Jan. 12, 2017)); Hsia, 24 F. Supp. 2d at
30. The need to compel the Government to identify documents is specifically acute
where the Government’s production proves unworkable or unmanageable, as “the
‘duty to disclose [exculpatory evidence] may be unfulfilled by disclosing too
much; at some point, 'disclosure,' in order to be meaningful, requires 'identification'
as well.’" Cutting, No. 14-cr-00139-SI-1, 2017 U.S. Dist. LEXIS 5006, at *24
(quoting United States v. Salyer, 271 F.R.D. 148, 155 (E.D. Cal. 2010)).
Specifically, when “the government's production has not only been voluminous,
but its electronic production has been marred by technical problems that seriously
impede defendants' ability to search the ESI,” the Court should deem “it
appropriate to order the government to identify by Bates number the Brady/Giglio
material in the discovery that has been produced.” Id. slip op at *29.
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The Court in United States v. Blankenship, No. 5:14-cr-00244 (S.D. W. Va.
June 12, 2015) in turn “reject[ed] … the government's argument that merely
providing a ‘searchable, indexed, digital database of documents’ to the defendant
was sufficient under Brady.” United States v. Saffarinia, 424 F. Supp. 3d 46, 87
(D.D.C. 2020)(quoting Blankenship, slip op. at *4). Once again, meaningful,
effective access to the Government’s information is the touchstone of the analysis.
The Court should order “that the United States should specifically designate any
known Brady material as such and disclose the same to defense counsel,” when
the Government merely provides voluminous documents without more.
Blankenship, No. 5:14-cr-00244 slip op. at *15-16
The Courts that have required the Government to specifically identify Brady
material acknowledge Skilling’s "general rule" that "the government is under no
duty to direct a defendant to exculpatory evidence within a larger mass of disclosed
evidence." Nonetheless, based on the quality of that production, the constitutional
nature of the Government’s obligation, and the Defendants’ relative dearth of
resources when compared to the Government, the Skilling holding “does not
preclude the [Court] as a matter of case management (and fairness) in ordering
identification [of Brady material] to be done." Saffarinia, 424 F. Supp. at 85 n.15.
The Supreme Court itself “has placed the initial Brady/Giglio duty on the
government, and the [court] is not free to assign it to [the defendant]," compelling
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the “prosecution in the first instance to affirmatively look for and disclose
Brady/Giglio.” Id. at 88.
In the present case, based on the quality of the production as analyzed by
Cornerstone, the constitutional nature of the Government’s obligation, and the
Defendants’ relative dearth of resources when compared to the Government, the
Court should compel the Government to specifically identify any Brady material in
the document production. Although our Courts do not compel the Government to
do so as a matter of course, the nature of the production compels such a remedy,
especially in light of the fact that the Third Circuit has specifically rejected any due
diligence requirement on the part of the Defendant.
II. IN LIGHT OF THE THIRD CIRCUIT’S REJECTION OF ANY DUE
DILIGENCE REQUIREMENT, THE GOVERNMENT MAY NOT MEET
ITS BRADY OBLIGATION THROUGH A MASS PRODUCTION OF
DOCUMENTS THAT PRECLUDES MEANINGFUL ACCESS.
Prior to the Third Circuit decision in Dennis, the Third Circuit repeatedly
“made clear that Brady does not compel the government to furnish a defendant
with information he already has or, with any reasonable diligence, he can obtain
himself." United States v. Pelullo, 399 F.3d 197, 213 (3d Cir. 2005); United States
v. Starusko, 729 F.2d 256, 262 (3d Cir. 1984); United States v. Kubini, 19 F. Supp.
3d 579, 627 (W.D. Pa. 2014). Pursuant to this logic, the Third Circuit maintained
that “Brady and its progeny permit the government to make information within its
control available for inspection by the defense, and impose no additional duty on
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the prosecution team members to ferret out any potentially defense-favorable
information from materials that are so disclosed.” Pelullo, 399 F.3d at 212; United
States v. Perdomo, 929 F.2d 967, 973 (3d Cir. 1991); United States v. Starusko,
729 F.2d 256, 262 (3d Cir. 1984).
That line of cases came to end in 2016 with the Third Circuit’s decision in
Dennis v. Sec'y, Pa. Dep't of Corr., 834 F.3d 263, 290 (3d Cir. 2016), when the
Court made clear that “the United States Supreme Court has never recognized an
affirmative due diligence duty of defense counsel as part of Brady, let alone an
exception to the mandate of Brady as this would clearly be.” Such a requirement
“upon defense counsel would erode the prosecutor's obligation under, and the basis
for, Brady itself.” Id. Although the Court acknowledged conflicting decisions in
the past, the Third Circuit saw the “need to clarify our position: the concept of ‘due
diligence’ plays no role in the Brady analysis.” Dennis, 834 F.3d at 291.
Subsequent decisions from the Third Circuit Court of Appeals confirmed
that “Dennis corrected a major misstep in this Circuit's case law, one that was
central to the nature of Brady claims and the relative expectations that the law
places on prosecutors and defendants with respect to exculpatory information in
the government's possession.” Bracey v. Superintendent Rockview SCI, 986 F.3d
274, 289 (3d Cir. 2021). As the Court clarified:
Our en banc opinion in Dennis thus decisively rejected the line of cases
embracing a due diligence obligation and returned us to first principles
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as to both the factual predicate of a Brady claim and the reasonable
expectations of a defendant in the Brady context. Whereas we had
previously suggested that the factual trigger for a Brady violation was
the prosecution's failure to disclose material exculpatory evidence not
otherwise accessible to the defendant, Dennis embraced an "absolute"
prosecutorial duty to disclose "not depend[ent] on" the defense's
efforts. 834 F.3d at 290. And whereas we had previously suggested
that a defendant bore an independent obligation to seek out Brady
material, Dennis held that the defense may "rely on the prosecutor's
duty to turn over exculpatory evidence," with any inquiry into the
defendant's ability to discover that evidence being "beside the point."
Id. at 291. Thus, while it had the effect of bringing our case law back
in line with clearly established Supreme Court precedent, id., Dennis
reflected a significant change in our own jurisprudence ...
Id. at 289-90. Dennis thereby “overruled” existing case law such as Pelullo,
Perdomo, Starusko and Grant v. Lockett, 709 F.3d 224, 230-31 (3d Cir. 2013),
insofar as a due diligence requirement is concerned. Id. at 290 n.14 (“… it's why an
en banc was required to overturn those precedents and bring us in line with
Supreme Court precedent…”)
Imposing a general obligation of due diligence upon the Defendants
improperly “places the burden of discovering exculpatory information on the
defendant and releases the prosecutor from the duty of disclosure.” See United
States v. Tavera, 719 F.3d 705, 711 (6th Cir. 2013)(citing Banks v. Dretke, 540
U.S. 668 (2004)). As the Supreme Court has stated, “Our decisions lend no support
to the notion that defendants must scavenge for hints of undisclosed Brady material
when the prosecution represents that all such material has been disclosed.” Banks,
540 U.S. at 695. Any rule that permits a prosecutor to abdicate his duty under the
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guise that the defendant is able to locate information “is not tenable in a system
constitutionally bound to accord defendants due process.” Id. at 696; Amado v.
Gonzalez, 758 F.3d 1119, 1136 (9th Cir. 2014)(“The Court of Appeal's
requirement of due diligence would flip that obligation, and ..is contrary to federal
law as clearly established by the Supreme Court … .”).
The Third Circuit’s current jurisprudence makes clear that the Supreme
Court “placed the burden of obtaining favorable evidence squarely on the
prosecution’s shoulders.” Dennis, 834 F.3d at 290 (citing Kyles v. Whitley, 514
U.S. 419, 437 (1995)). The Supreme Court of the United States has specifically
held that an “individual prosecutor has a duty to learn of any favorable evidence”
and that the Government has an affirmative duty to “assist the defense in making
its case.” Bagley, 473 U.S. at 675, n. 6; Kyle, 514 U.S. at 437.
In fact, scores of Federal Courts have interpreted Supreme Court precedent
as standing for the proposition that the Prosecutor’s duty includes an obligation to
affirmatively search for Brady material and include it within the “open file”:
… the prosecution has the duty to affirmatively scour those records of
the agencies considered the “government” for purposes of the criminal
case in order to determine and acquire those materials which would be
considered Brady exculpatory and Giglio impeaching. Kyles v.
Whitley, 514 U.S. 419, 437 (1995); United States v. Price, 566 F.3d
900, 908–909 (9th Cir. 2009). Indeed, the most recent Department of
Justice guidelines, fashioned after some embarrassing non-disclosures
in other cases, command an actual review of the materials acquired
during investigation of a criminal case for the purpose of disclosing
Brady/Giglio materials. See Memorandum for Department
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Prosecutors, dated January 4, 2010, Section B, e.g., items, 1 (“The
prosecutor can personally review the file or documents or may choose
to request production of ... materials from the case agent”),
(“[g]enerally, all evidence and information gathered during the
investigation should be reviewed, including anything obtained during
searches or via subpoenas, etc.”). Tellingly, nowhere in the
memorandum does it even suggest that in lieu of affirmatively looking
for Brady/Giglio the prosecutor may determine not to look at all and
simply disclose the entire discovery file. The prosecutor's argument
that his duty to affirmatively search for Brady/Giglio information is
performed by not searching is oxymoronic in nature.
United States v. Salyer, 2010 WL 3036444, slip op. at 3 (E.D. Cal. 2010). The
affirmative duty to search all of the material to which the Prosecutor has access
derives from the fact that “[t] he prosecution's affirmative obligation under Brady
may often go beyond divulging what is in ‘the file.’” Smith, 50 F.3d at 828.
The constitutional mandate of due process and “notions of fundamental
fairness” thereby lie at the heart of “Brady and its progeny” which “embody a
practical recognition of the imbalances inherent in our adversarial system of
criminal justice.” Id. at 823. Because of “the constitutional nature of the
Government's Brady obligation,” the Government is the party required to designate
the exculpatory material. The Government’s superior knowledge of both “the
nature of the charges and … the evidence and witnesses it intends to produce to
prove those charges,” places it “in a far better position than the Defendant to know
what evidence might be exculpatory and/or impeachment material under Brady.”
Blankenship, No. 5:14-cr-00244, 2015 U.S. Dist. LEXIS 76287, slip op at *16-17;
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see also United States v. Briggs, No. 10CR184S, 2011 U.S. Dist. LEXIS 101415,
at *24 (W.D.N.Y. Sep. 8, 2011)(“…, as between the Government and defense, the
Government is in the better position to organize this mass of information and re-
present it in a manner that is searchable by the defense.”)
The Supreme Court’s rejection of the due diligence requirement is thereby
predicated upon the fact that “the prosecution has the advantage of a large staff of
investigators, prosecutors and grand jurors, as well as new technology such as
wiretaps of cell phones.” Tavera, 719 F.3d at 712. The “superior prosecutorial
investigatory apparatus” requires that the Government “assist the defendant who
normally lacks this assistance.” Id. The fact that “the Government’s hand is
stacked with cards the defense lacks” creates a need “[t]o compensate for these
imbalances ... in the interest of promoting and enhancing the search for truth.”
Smith, 50 F.3d at 823.
The Third Circuit has similarly noted, “The emphasis in the United States
Supreme Court's Brady jurisprudence on fairness in criminal trials reflects Brady's
concern with the government's unquestionable advantage in criminal proceedings,
which the Court has explicitly recognized.” Dennis, 834 F.3d at 290. The distinct
“prosecutorial advantage” compels that the Court focus squarely upon “disclosure
by the prosecutor, not diligence by defense.” Id. Although the Supreme Court did
not intend for Brady to entirely displace the adversary system, our Circuit has
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interpreted Supreme Court precedent as signaling “approval of the shift in the
traditional adversarial system Brady imposes.” Dennis, 834 F.3d at 263. Current
Third Circuit jurisprudence under Dennis adopts the underlying logic of those
cases that rely upon the Government’s superior resource advantage to require the
Government to do more than simply provide access to a voluminous file.
Dennis has changed this Circuit’s jurisprudence with regard to a defendant’s
due diligence and the obligations, duties and rights mandated by our Constitution,
placing it back in line with existing Supreme Court precedent. It is high time this
Circuit place itself back in line with both Supreme Court precedent, and the bulk of
the Federal Circuits, in refusing to countenance voluminous document productions,
that are ineffective and unusable, like the production in the present case. Because
the Third Circuit has made clear that the there is no due diligence requirement, the
quality of the production in the present case requires that the Government, with its
vastly greater resources, identify any Brady materials.
III. THIS COURT SHOULD ORDER THE GOVERNMENT TO OBTAIN
AND REVIEW THE PERSONNEL FILES OF EACH LAW
ENFORCEMENT WITNESS FOR IMPEACHMENT MATERIAL.
Defendant Ponzo anticipates that law enforcement officers will testify at
evidentiary hearings and/or trial. The Government should be required to obtain and
to review the personnel and other files regarding each law enforcement witness,
and immediately to produce to counsel for Defendant Ponzo any documents and
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information contained in such files that is impeaching to the witness’ credibility.
See United States v. Bagley, 473 U.S. 667, 676 (1985); Giglio v. United States,
405 U.S. 150, 154 (1972). Defendant Ponzo’s Sixth Amendment rights to
confrontation and compulsory process also mandate access to those type materials
contained in law enforcement officer’s personnel files. See Commonwealth v.
Mejia-Arias, 734 A.2d 870, 874-876 (Pa. Super. 1999).
Because the personnel and internal affairs files are not something to which
the defense has access, and are exclusively in the control of law enforcement
agencies, the burden of obtaining such files and providing them for the Court’s in
camera review should fall to the government. Overall, government review of
personnel and internal affairs files regarding law enforcement witnesses should
include but not be limited to the following:
1. reference to perjurious conduct or false testimony;
2. reference to verbal falsification to superiors or supervising personnel;
3. references to falsehoods on job applications or promotion applications;
4. reference to any other dishonesty by such law enforcement officer,
including but not limited to improper claims for: overtime, time off, sick
time, vacation time;
5. references to falsification of reports;
6. any other references to conduct or words involving dishonesty; and
7. references to any conduct that could be construed to be criminal activity
by a law enforcement officer, whether or not it is a crimen falsi.
The review of personnel files should not be limited to just the federal government
files, but also to other governmental agencies for which any government witnesses
worked. Pre-trial disclosure to the defense of impeachment information is critical
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to safeguard Defendant Ponzo’s Due Process rights. Early pre-trial disclosure is
necessary to enable the defense to conduct effective pre-trial investigation, to
assess and to pursue appropriate defenses, and fully to test the validity,
admissibility and credibility of the government’s evidence and witnesses.
Conclusion
Although the Government is not required to identify Brady materials in
every criminal prosecution, the quality of the production in this case, the difficulty
in obtaining meaningful access, and the considerations underlying Dennis compel
such a remedy. The absence of any assistance in terms of navigating the document
production makes clear that the Government may not rely upon “access” to its
open file to fulfill its Brady obligation.
For the foregoing reasons and those set forth in Ms. Ponzo’s Motion to
Compel Production Pursuant to Brady , Ms. Ponzo respectfully requests that his
motion be granted, and that the Court compel the prompt identification and
production by the Government of any and all material favorable to his defense, as
required by Brady v. Maryland, 373 U.S. 83 (1963), and its progeny.
Respectfully Submitted,
/s/ Troy Archie
Troy A. Archie, Esquire
Counsel for Adrienne Ponzo
Dated: December 2, 2024
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CERTIFICATE OF SERVICE
I certify that a true and correct copy of the within Motion to Compel
Pursuant to Brady v. Maryland, 373 U.S. 83 (1963) was served upon the following
persons electronically via ECF:
Daniel A. Friedman, Assistant United States Attorney
Daniel.friedman2@usdoj.gov
All Defense Counsel
Dated: December 2, 2024 /s/ Troy A. Archie
Troy A. Archie, Esquire
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